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I 



The Kentucky Resolution: 

OF 1798 
An Historical Study 



BY 



/ 

E'lHELBERT DUDLEY WARFIELD, A.M., LL.B, 



BARRISTER-AT-LAW 






/ .. '1 






Op i/t/a C: = 



NEW YORK & LONDON 

G. P. PUTNAM'S SONS 

%\t l^nickcrbotker ^rrss 

1887 



L- 



COPYRIGHT BY 

E. D. WARFIELD 
1887 



Press of ^ 
G. P. Putnam's Sons 
New York 



F-^s \ 



W1L 



1 



\»C,^o.\ 



DEDICATED 

TO THE CHERISHED MEMORY OF 

MY WIFE 



lit 



CONTENTS. 



CHAPTER I. 
Introduction ..... 



CHAPTER II. 
Kentucky's Growth towards the Resokitions ... 21 

CHAPTER III. 
John Breckinridge the Mover of the Resolutions . . 49 

CHAPTER IV. 
The Resolutions ........ 74 

CHAPTER V. 

The Resolutions before the States and Congress . .110 

CHAPTER VI. 
The Authorship of the Resolutions .... 133 

CHAPTER VII. 
The Doctrines and Effects of the Resolutions . . 166 



PREFACE. 



This little work was first suggested several years 
ago by a sense of the inadequacy of the historical 
accounts of the Kentucky Resolutions of 1798. 
This feeling has steadily increased ever since, and 
its correctness must be apparent to every one 
who has remarked the great influence these Resolu- 
tions have had upon our constitutional and political 
history. While they have been the cause and occa- 
sion of much debate and transitory discussion, 
there is no connected account of the causes and 
circumstances of their adoption, and their relation 
to the subsequent history of this country^ except 
such as under many limitations is to be found in 
the histories of the United States under the Con- 
stitution, None of these are calculated to make 
the subject plain to the average reader, and there 
is scarcely one that is not positively in error as to 
some important fact. 

The original documents, many of which have 
always been accessible, have been singularly neg- 
lected, and misstatements that at first crept in by 
inadvertence or unwarranted assumptions, not only 
have never been corrected by recourse to the sources^ 



viii Preface, 

but have been repeated till they became the seed 
of error, later writers competing with each other in 
reiterating the mistakes of all those who preceded 
them. 

The materials used in this book, while no printed 
work treating of the subjects embraced in its pur- 
view has been intentionally neglected, are chiefly 
the original sources — the newspapers of the day 
and the written accounts of actors upon the stage, 
but especially the letters and manuscripts of the 
time, and of the men who were the leaders in the 
movements against the Alien and Sedition laws, 
Of all the sources consulted none can be compared 
for interest and importance to the hitherto almost 
untouched store of manuscripts forming the Breck- 
inridge papers and containing John Breckinridge's 
literary remains. 

Some part of the contents of this volume has 
already been published in a series of articles in 
the Magazines of American and Western History, 
but in a very abridged form and rather for the sake 
of provoking criticisms which might lead to a full 
and complete treatment of the questions connected 
with the Resolutions than as a permanent contribu- 
tion to American history. 

It is hoped that the evidence herein set out may 
be regarded as justifying a final judgment upon the 
important and somewhat mooted points of the real 
mover of the Resolutions in the Kentucky legisla- 
ture and their true text. It is, perhaps, too much 
to hope that any final solution of the problems of 
authorship and interpretation is now, or ever will 



Preface, ix 

be reached. Some new light has been found even 
upon these difficult questions, and some advance 
towards a final statement of all the evidence may- 
have been made, even though the desired end has 
not been attained. If no other good is accom- 
plished, yet if some part of the credit that is justly 
due to John Breckinridge, the mover and responsi- 
ble author of these Resolutions be recovered, this 
work has not been written in vain. 

Thanks for aid and encouragement are due to 
many friends, who have added so much to the ac- 
complishment of my task that I cannot deny myself 
the public recognition of their assistance. Chief 
among these, are Prof. Alexander Johnston, Hon. 
Wm. C. P. Breckinridge, Col. R. T. Durrett, Pres. 
James C. Welling, and Hon. James Schouler. 

Ethelbert D. Warfield, 

Grasmere, near Lexington, Ky., 
Mid-Summer^ 1887. 



THE KENTUCKY RESOLUTIONS 
OF 1798. 



CHAPTER I. 

IN TROD UCTION. 

The history of the Resolutions of 1798, of the 
causes which led to them, their authorship, and 
their influence upon the history of the United 
States, involves so many problems, and those prob- 
lems are of so nice a character, that any one must 
needs feel the greatest hesitancy in undertaking to 
write it. Questions that have divided men into 
parties and factions, especially if bitter feelings 
have been engendered and conflicts provoked by 
them, must always afford difficult fields for the his- 
torian. The partisan finds little to commend in 
the conclusions of the most righteous judge, and if 
the doctrinaire has preempted the domain, his 
judgments are apt to prevail with those whose 
natural inclinations lead in the direction which he 
has pursued. Party passion on each side has done 
its worst to make the history of these resolutions 
difficult, and doctrinaires have appeared to repre- 
sent almost every possible point of view. Much as 



2 IntrodMction. 

they have been discussed, and many as are the 
theories that have been promulgated concerning 
them, no attempt has as yet been made to write 
their history in a full and connected form. Cer- 
tainly it may justly be assigned a place among 
those departments of American history esteemed 
worthy of separate treatment ; and now that the 
mists of passion and prejudice that so long forbade 
any attempt at a candid discussion are nearly dis- 
sipated, it may not be too much to hope that the 
day is at last come when a fair-minded and dis- 
passionate narrative may be written, the general 
uncertainty that clings to the whole subject be dis- 
pelled, and some of the errors that have crept into 
the most v/eighty accounts be corrected. 

A clear knowledge of the causes that led to the 
Resolutions of 1798-9 is indispensable to the under- 
standing of the problems connected with them. 
They had the primary cause of their existence not j; 
in any temporary condition of affairs, but in the f 
great natural diversity of sentiment common to all I 
men. The trend of human thought constantly ' 
leads men, according to their natural temperaments, 
to separate themselves into two great parties. By 
whatever names they may be knov/n at different 
times and places, the one may be roughly designated 
as Conservative, and the other as Progressive. 
According to the condition of public affairs the 
efforts of the one party are directed towards the pres- 
ervation intact of the existing government and the 
resistance of all change, or towards the steady 
strengthening of the hands of authority, and an 



Liirodttdion. 3- 

increase of the prerogative of the executive. While 
the other party in each instance adopts an opposite 
course. The natural bent of the one party is tow- 
ards a strong and highly centralized government, of 
the other towards a pure democracy. The one 
finds its dangerous extreme in absolute mon- 
archy with all the attendant theories of divine 
right, non-resistance, and so forth, while the latter 
finds its corresponding extreme in anarchy. In 
one form or another these opposing theories are 
always present in the state. Immediately after the 
Revolutionary war had left this country free but ex- 
hausted, they began to show themselves in various 
forms and different degrees of intensity in every 
part of the land. The general prostration and the 
natural weight of vis mertia told heavily on the 
feeble Federation, and the majority of thinking 
men watched with regret the slow, insidious work 
of disintegration. The essential weakness of the 
Federation was more and more widely recognized, 
till at last the tide set strongly towards a more 
efficient government, and by constant, almost 
heroic, efforts ^e dead weight of opposition was at 
length raised, and the country fairly made a na- 
tion. All but the most uncompromising foes of a 
strong central government joined in one way or 
another in the movement. The only notable ex- 
ceptions were to be found among the citizens of 
those States which hoped to gain by oppressing 
their weaker neighbors and monopolizing com- 
merce when the long impending ruin of the effete 
central government should become an accomplished 



4 Introduction. 

fact. There were many men, indeed, who were for 
strengthening the federal head, who yet refused 
assent to the constitution offered them, but this was 
on specific not on general grounds. 

When once the youthful nation was launched on 
her voyage with the new Constitution, there was a 
rapid and radical shifting on the part of many. The 
terms Federalist and Anti-Federalist were applied to 
very different men at dates so near together as 1788 
and 1790; and in a few more years there were fewer 
still who retained their old party-name, and this 
without any change of principles. Some of those who 
on various grounds had made the most determined 
fight in their several States against ratification, be- 
came under the new order of things devoted to the 
party of the administration, which claimed for itself 
the right to live under the honorable symbol of their 
late victory, the name of Federalist. No more no- 
table instance of this class could be cited than the 
leader of the Virginia minority, the eloquent Henry. 
Once committed to the new form, he became one 
of the President's staunchest coadjutors. On the 
other hand, Madison and Jefferson, who had been 
/ so instrumental in bringing about the Annapolis 
convention, and the former of whom had played 
such an able part in the Philadelphia conven- 
tion, drifted in the opposite direction. Jef- 
ferson who had wavered somewhat at first, was all 
for the Constitution if the amendments which were 
eventually secured could be obtained. But by all 
the dictates of his taste and temper he favored the 
least centralized form of government that would 



Introduction, 5 

subserve the purposes of securing a permanent 
union of the States, and of rendering that union 
secure against foreign interference ; and earnestly- 
desired the widest latitude for the exercise of State ^ 
and personal liberty in domestic affairs; and these^ 
natural proclivities had been confirmed and strength- 
ened by his residence in France. Madison was by 
nature very moderate in his views. In early life his 
position leaned rather towards the conservative and 
centralizing party, and in the last years of his life 
he returned to the same position, but under the in- X 
fluence of his great chief and the irresistible current 
of opinion in Virginia he assumed from the time of 
the first Congress forth a position not to be distin- 
guished from that of Mr. Jefferson so long as the 
latter lived. 

It is safe to say that a large part of those who be- 
came known after the adoption of the Constitution 
as Anti-Federalists, were old Federalists who con- 
sidered the end they had labored to secure as at- 
tained when the Constitution was put into effect. 
They had regarded a strong central government as 
only a less evil than dismemberment, and when the 
latter fate was averted they winced at every act that 
carried the system they had helped to inaugurate 
into efficient action. The period of Washington's 
administration was almost entirely consumed in the 
work of organizing the new government and carry- 
ing out the provisions of the Constitution. The 
aspect of affairs when a vigorous nation, fully 
equipped, with all the insignia of power, had sup- 
planted the weak and visionary federation was not 



6 Introduction. 

a little startling to men who had made this their 
bete noir. The prophet of such a change would 
have been laughed to scorn half a dozen years be- 
fore. Indeed, few of this class, even those who 
fancied themselves most familiar with the instru- 
ment, thought it possible to create such a power in 
so brief a space of time out of the Constitution. 
This was doubtless due to a failure to give adequate 
weight and consideration to two factors which were 
destined to effect materially the result ; first, the 
capacity of the country for great and rapid growth, 
and second, of even more immediate influence, the 
means and methods that would at once be called 
into being to effectuate the plain provisions of the 
Constitution. To those who occupied this position 
the financial operations of Hamilton were not 
merely unlooked-for, but they assumed the aspect 
of unwarranted, and even wicked, violations of the 
Constitution. Thus step by step as the work of or- 
ganization went on, the central government devel- 
oped a power and patronage which was at once 
surprising and highly disapproved of by many 
sometime ardent Federalists ; and thereby steadily 
estranging many from the administration, it built 
up an opposition, and an opposition that had a 
firmer party-basis than most of those who composed 
it realized. 

This fundamental division of political opinion, 
which has now come to be universally recognized, 
may be wholly or partly concealed by the temper 
of certain times or the absorbing claims of specific 
measures, but nevertheless it is always present, 



Introduction. 7 

and according to the trend given to political 
action it is pronounced or obscure ; but when this 
or that diversion has ceased to operate, the old ruts 
are again followed and the old division made plain. 
The condition of public affairs, both at home and 
abroad, during the early years of our national life, 
ran in courses that made this great division most 
prominent. Individual tastes were reinforced or 
modified by the special advantages the one policy 
or the other offered to the different States or sec- 
tions of the country. These in turn, even as they 
dictated, were intensified and accentuated by lean- 
ings to British or French sympathies. As the one 
class of ideas was dominant in one country and the 
other in the other, they to a remarkable extent 
came to stand for the two policies. It is almost 
impossible, at the distance of nearly a century, to 
regard without the liveliest wonder the intense 
bitterness engendered by these different foreign 
attachments, and the tremendous influence which 
they exerted over the minds of our forefathers 
between the era of the Revolution and the second 
war with Great Britain. They were not a mere 
natural hostility against the mother country grow- 
ing out of the prolonged war, and an equally 
natural spirit of gratitude for the timely aid of 
France. They differed from such sentiments so 
widely as not even to be comparable to them, and 
did not end with awakening sympathy and dislike, 
or even of governing our foreign relations, but ex- 
tended to our domestic concerns and dictated our 
home policy. All of these things tended in the 



8 Introduction. 

same direction and drew a sharp line between the 
advocates of a strong and of a feeble central gov- 
ernment. 

In addition to these causes there was a special 
development of what may be called the " individu- 
alism," which is generally found as a prominent 
feature of that theory of government which looks 
towards liberalism and democracy. That is, the 
development of the importance of the individual in 
relation to the State. Mr. Jefferson was a most 
advanced advocate of this principle. Under his 
leadership it v/as gradually advanced, and finding 
a ready acceptance, especially in the South and 
West, became one of the greatest forces in the 
development and permanence of the party he 
founded. The noble system of English law, which 
from the time of the first settlements had been 
firmly established in the colonies, had for some 
time been marked by a comparative neglect of the 
individual, a neglect which in its administration 
had been accentuated to such an extent that at 
the era of our revolution English jurisprudence 
seemed much too indifferent to the personal rights 
of citizens. Property rights were preferred to per- 
sonal rights, and the most trifling violations of the 
former were visited with much more speedy and 
severe punishment than the most serious assaults 
upon the latter. The libel law was peculiarly op- 
pressive, and its administration had been a scandal 
and a shame. The prosecutions under this law for 
a century l^efore this country achieved its indepen- 
dence, had been enough to discourage the most 



Introduction. 9 

courageous friends of free speech and a free press. 
From this source Mr, Jefferson drew a wholesome 
dread of any incroachnients upon the freedom of 
the individual in whatever sphere, and curtailments 
of it were too recent and too great for it to be 
regarded as a figment of his brain. It appealed to 
him very strongly, falling in as it did with his 
natural habit of thought. Many regarded it as 
sufficiently guaranteed by the Constitution, but 
his fear and unrest were never satisfied even by 
so perfect a continuing guaranty, and he never 
ceased to watch over it jealously. He showed the 
first- force of his convictions on this subject in 
the particular enumeration in the Declaration of 
Independence of the rights of " life, liberty, and 
the pursuit of happiness," again in his insistence 
upon the addition of a bill of rights to the Con- 
stitution, and in his watchful care throughout his 
career. There are many instances in which it 
behooves us to keep in view the dominant influ- 
ence of this individualism on Mr. Jefferson's mind. 
It is not only the key to many of his own acts, but 
to the problems that afterwards grew out of them 
when it was attempted to wrest them to a widely 
different meaning. The natural result of these in- 
clinations was exhibited in his steady advocacy of 
a general government of minimum power, a foster- 
ing of the influence of the States as the natural 
bulwarks against a strong central power, and his 
unwearied struggle for what was, indeed, the great 
end of all his policy, a democracy of the purest and 
simplest type, possessing all the power capable of be- 



lo Introdtiction. 

ing lodged in its hands and itself exercising as far as 
possible all the functions of government, itself the 
master, its office-holders the servants, and dictating 
and rightly requiring from all the most republican 
simplicity. 

Such, in brief outline, were the sentiments of 
those who regarded the vigorous policy so prompt- 
ly adopted and put into operation under Washing- 
ton, with dislike and distrust. The overshadowing 
influence of the President held many to the warm 
support of the administration who would otherwise 
have been in the ranks of the opposition, and a far 
greater number yielded acquiescence to the same 
spell. There was, however, a steady growth 
tov/ards the principles of those opposed to central- 
ization. But for a long time they lacked both 
organization and party-name. Of leaders there was 
no lack. New York offered some brilliant candi- 
dates for headship ; Massachusetts herself could 
have supplied an able champion ; but by general 
consent the position was accorded to Virginia. Not 
at once, indeed, but gradually. In the House of 
Representatives, Madison quickly won the first 
place, but he was then, as ever afterwards, second 
to Jefferson, and by the time that the third presi- 
dential election had come, Jefferson was almost 
without a rival. Had the party been better organ- 
ized, with a clearer enunciation of principles, they 
would have made a much better stand even thus 
early. They lacked cohesion sadly, and hitherto 
they were without any party-name of general ac- 
ceptation. The name of Anti-Federalist was too 



Introduction. 1 1 

negative, and to some still smacked of a false po- 
sition ; the name of Democrat, which was not un- 
commonly given at the time, was a term of reproach 
and grew out of the unfortunate conduct of Genet, 
and the taste of French affairs was then fast grow- 
ing bitter in all men's mouths. They had already 
begun to give themselves out as Republicans, and 
then to join the two names into Democratic-Republi- 
cans ; but as yet this name had not become fairly 
fixed upon the party. 

Such was the general state of affairs when Adams 
became President, and Jefferson Vice-President. 
Mr. Jefferson with his unfailing political sagacity 
had remarked the weaknesses in the great body of 
men who thought with him, and now began a sys- 
tematic course directed towards the remedying of 
those defects. His first impulses towards a coopera- 
tion w4th the policy that Mr. Adams might pursue 
were of brief duration.^ Their points of view were 
hopelessly at variance. 

The President v/as an avov/ed admirer of the 
British Constitution, he had pronounced views of 
an aristocratical nature, and he was an uncom- 
promising friend of strong government. The Vice- 
President, great as he was, was undeniably sus- 
picious, and especially so of the northern Federalists. 
Even he forgot, that while at the Court of St. 
James Mr. Adams had pursued a most manly 
and independent course, and that, whatever his 
theories were, he had proved his patriotism and 

^ Jefferson's Works, vol. iv., pp. 153, 154 et seq., ei. 166. 



12 IntrodMction, 

republicanism in his masterly leadership in the first 
years of the Continental Congress. The distrust 
was probably mutual, but the President was the one 
to whom confidence and cooperation were due, 
and instead of that the Vice-President was the 
leader of the opposition and his rival for the suf- 
frages of the people. The situation was too much 
for the administration. The President early gave 
offence by inauspicious speeches in regard to the re- 
lation of British and French influences, and kindred 
matters. The friends of France took especial ex- 
ception to a remark to the effect that the American 
and French revolutions possessed not one point in 
common. Madison and Jefferson criticised this 
utterance freely in their correspondence, and it be- 
came the text for a public warning against a man 
who could hold such an opinion. Meanwhile our 
relations with France were growing more and more 
complicated. The performances of Genet pro- 
duced a great revulsion of feeling on the part of 
many ardent French sympathizers. And from the 
time of his coming there was never quite the same 
feeling that had once prevailed. When Washing- 
ton left office Adet's commission was suspended, 
and though he continued in Philadelphia, he was 
no longer accredited to the government. Charles 
Cotesworth Pinckney had set out bearing Monroe's 
recall and his own credentials to St. Denis. W^hen 
he arrived he v/as received with much hauteur, 
and finally informed that the Directory declined to 
recognize him. All this had transpired in the last 
days of Washington's administration, but the news 



Introduction. 1 3 

had not reached this country when Adams was in- 
augurated. The country generally was exasperated 
by the rejection of Pinckney, and the circumstances 
of that rejection made the course of France, which 
for a long time had been directed towards a separa- 
tion between the executive and a large body of the 
people, more patent than at any previous time. But 
Adams declared it to be his desire to heal the dif- 
ferences if possible, and to do all in his power to 
prevent the breach from widening. In order to 
accomplish this he summoned Congress to a special 
session in May and expressed his intention of nom- 
inating a commission to be sent to France to en- 
deavor to bring about an accommodation. This 
commission as first drawn was to consist of Pinck- 
ney, Dana, and Marshall, but Dana declined, and 
Gerry was substituted for him. Gerry and Mar- 
shall set out promptly and joined Pinckney in Hol- 
land. Their credentials and instructions were ade- 
quate to the broadest scope of negotiation and there 
was great hope that they would be able to effect an 
accommodation. But at the same time there was 
a growing distrust of French attitudes, and particu- 
larly of the increasing power of Buonaparte. Even 
Mr. Jefferson v»^as doubtful what the times would 
bring forth. Time slipped away. Negotiation was 
slow and communication between the countries 
imperfect. Public interest was fairly on tip-toe. 

The envoys had reached Paris early in October, 
and six months had now elapsed. Just at this 
moment the weight was lifted from the President's 
heart which had been so sorely stung by insult and 



1 4 Introduction. 

vituperation. The X. Y. Z. despatches arrived and 
were made public on the 3d of April, 1798. A 
tremendous revulsion of feeling was the result. 
'* Millions for defence, not one cent for tribute," 
became the cry on every hand. Adams was for 
once almost a popular hero. Federalism was in 
high feather. A French war seemed imminent, and 
for the moment would have been received with ac- 
clamation by all parties. This seemed to be the 
time to press forward vigorous measures that would 
undo much past evil and prevent much future an- 
noyance. The programme embraced three acts. ^ 
The first a change of the naturalization law ; the 
second an alien act ; the third a sedition act. ^ 
The effect of the first was to alter the period of 
residence necessary to citizenship from five to four- 
teen years, to require a registration of all white 
aliens, and to forbid the naturalization of alien 
enemies. The Alien Act permitted the banishment 
of aliens under the simple order of the President, 
and in case of refusal to depart it authorized im- 
prisonment and deprivation of the right to become 
a citizen. This was for alien friends, for the act 
drew this distinction. Alien enemies could be de- 
tained, banished, imprisoned, all at the discretion 
of the President. This was a most remarkable 
stretch of authority, but the Sedition Act was far 
more radical. It originated in the Senate, and 
must have alarmed not merely the friends of 
France and the Republican party, but equally all 
clear-sighted friends of freedom and of calm legis- 
lation. As introduced, its first section declared 



IntrodudiQju 1 5 

France to be a public enemy, and made the giving 
of comfort or aid to Frenchmen or France by any 
one owing allegiance to the United States treason, 
and punishable with death. The second clause 
made the concealing or withholding of information 
concerning the acts made treason by the preceding 
section misprision of treason, and punishable by 
fine and imprisonment. The third was directed 
against combinations and conspiracies to resist the 
laws and the execution of the laws by officers of 
the United States. This crime of sedition was 
punishable by fine and imprisonment, and the 
judges were given authority to require securities for 
future good conduct. The fotirth section was di- 
rected against seditious publications. 

It would have been wonderful had such a meas- 
ure become a law. It was tremendously sweeping 
in its provisions ; to pronounce France and her 
people enemies when not in a state of declared war 
was unexampled, and to make it a high misde- 
meanor to use language " tending to justify the 
hostile conduct of the French government " a 
great stretch of censorship. The first two sections 
were stricken out bodily ; not, however, till they had 
served to create alarm, and to supply a bugbear 
wherewith to frighten the uneasy, as examples of 
what the administration party desired and were 
working to obtain. The last two sections were 
purged of their more objectionable features, but a 
residuum remained ample to awake the fiercest in- 
vectives and the most determined opposition. It 
now included the two classes of seditious praclices 



1 6 IntrodMction, 

and the publication of seditious libels on the gov- 
ernment and its officers. Two clauses were added 
to modify the effect of these provisions. Section 
three permitted the truth in action for libel to be 
set up as a defence, contrary to the previous prac- 
tice, and section four limited the continuance of 
this act to the period of the current administration, 
that is, to March 3, 1801. 

Even before these laws were enacted a feeling of 
alarm spread everywhere. In the extreme Federal- 
ist States, no doubt, a feeling of triumph and ex- 
ultation prevailed, but even in their borders there 
was no lack of dismay among the minority. The 
opposition in Congress labored strenuously to 
prevent their passage, but in vain. Once passed, 
the country was thrown into a perfect ferment. 
The different portions of the country were affected 
according to the dominant political opinion. Where 
the Federalists were strong political feeling bore 
them headlong into prosecutions under the new 
powers. In the Republican States a sense of injury 
and danger went hand in hand, and the question of 
the hour was how to repel the threatening de- 
struction. 

Mr. Jefferson did not fail to see that the great 
opportunity for his party had come. His keen 
political sagacity detected in an instant the fatal 
mistake the administration had made, and he 
began at once to look about him for the best 
means to turn his opponents' mistake to his own 
advantage. Naturally he felt some delicacy in 
appearing too forward in assailing a government of 



Introduction. 1 7 

which he himself was the second in office. Never- 
theless he lent himself willingly to the task of 
organizing, in a quiet way, a systematic assault upon 
these laws of Congress, and at once opened a cor- 
respondence calculated to elicit the best judgment 
of his coadjutors and gradually drew out a pro- 
gramme of action. 

Virginia was by no means unanimous in repro- 
bating these laws. She had a large and influential 
body of Federalists, who were led by bold and 
able leaders, and, as is not infrequently the case 
with minorities largely constituted of the wealthy 
and cultivated, many of the Virginia Federalists 
were extreme in their convictions and partisanship. 
But the influence of Jefferson was paramount and 
the result of Jeffersonian principles soon appeared 
on every hand. Meetings were held in many of the 
counties upon their county court days at which 
were adopted addresses or series of resolutions con- 
demning or praying for the repeal of these laws. 
Among these counties were Prince Edward, 
Goochland, Orange, Augusta, Amelia, Powhattan, 
Louisa, and Caroline. Except Kentucky it made 
the greatest show of resistance. New York, New 
Jersey, and Pennsylvania sent petitions of appeal 
to Congress, and the latter, being especially 
aroused by the plain personal attack contained in 
these laws upon the popular Gallatin, was very 
active in doing what was possible to secure the 
repeal. 

It is a matter of general regret that so few 
of Mr. Jefferson's letters written just at this crisis 



1 8 Introduction, 

appear in his published works. Those that are 
before us contain more expressions of suspicions of 
surveillance and inspection on the part of the post- 
office than of opinions on the situation. His gen- 
eral views are, however, sufficiently well known. 
He wholly opposed the course the government was 
pursuing, but deplored any thought of violent 
measures, arguing very forcibly in a letter to John 
Taylor of Caroling, ^ that men were prone to differ, 
parties were inevitable, and the constant rule of 
either party impossible ; that, therefore to consider 
secession and separate existence with North Caro- 
lina alone, as suggested by him, was to flee from 
the evil without escaping it ; that one might thus 
continue to divide and subdivide and yet never 
attain the desired goal. At the same time he 
recognized the importance, even the imperative 
necessity, especially for party purposes, of prompt 
action, and soon came to share the opinion of 
those who thought that the legislatures should be 
made the mouth-pieces of their protests. In a less 
pleasing tone he wrote to S. T. Mason ^ : " The 
Alien and Sedition laws are working hard. I fancy 
that some of the State legislatures will take strong 
ground on this occasion. For my own part I con- 
sider those laws as only an experiment on the 
American mind to see how far it will bear an 
avov/ed violation of the Constitution. If this goes 
down, we shall immediately see attempted another 
act of Congress declaring that the President shall 

^ Jefferson's Works (1859), vol. iv., p. 247. 
^ Ibid., p. 257. 



Iniroduction, 1 9 

continue in office during life, reserving to another 
occasion the transfer of the succession to his 
heirs and the establishment of the Senate for life. 
At least this may be the aim of the Oliverians, 
while Monk and the cavaliers (who are perhaps the 
strongest) may be playing their game for the 
restoration of his m.ost gracious Majesty, George 
the Third. That these things are in contemplation 
I have no doubt ; nor can I be confident of their 
failure after the dupery of which our countrymen 
have shown themselves susceptible." This letter 
was written so late as October nth, when the fact 
that some action would be taken in the legislatures 
of Kentucky and Virginia w^as generally known. 
The tone of these remarks, a tone common in 
Jefferson's letters, is remarkable for the extreme 
measures he attributes to his opponents, and also 
for the pessimistic view of popular action. The 
question is inevitably suggested : Did he really 
think these things of men, most of whom he had 
served with, many of whom he had watched from 
the vantage-ground of a presiding officer, practi- 
cally without a vote, or the people toward whom 
he ever practised a wide optimism and showed a 
confidence honorable alike to himself and them ? 
Or on the other hand, was this tone assumed for 
purposes of policy, to urge his followers on to 
spirited action by painting the picture in the most 
sombre colors ? Neither alternative can be re- 
garded as worthy of a man of such a vigorous 
mind and such a genius for politics. 

But it was in Kentucky that the greatest re- 



/ 



20 Introduction. 

sistance was evoked. The feeling in that State 
was, indeed, little short of frenzy, and a singular 
unanimity was displayed even in the most extreme 
acts and sentiments. This grew out of no passing 
passion. It was based upon the most vigorous 
elements in her character as a people, Kentucky 
was at this time somewhat apart from the rest of the 
Union. With the single exception of the newly 
created State of Tennessee, the only one of the 
sisterhood west of the mountains, of very recent 
and rapid growth, she had, to a very large degree, 
interests peculiar to herself ; her needs were not 
clearly understood, and sometimes, when under- 
stood, disregarded by the others. Her complaints, 
just and unjust, had been many, but hitherto she 
had not gained the nation's ear. But the time was 
now ripe for her to assert herself, and as she played 
the most important part in the little drama that 
was then hurrying upon the stage, it is important 
to understand the circumstances which prepared 
her for her role, and in order that it may be quite 
plain that it was no mere chance which assigned to 
her this place, but a manifest destiny long in pre- 
paring, this point will be presented somewhat at 
length. 



CHAPTER II. 

KENTUCKY'S GROWTH TOV/ARDS THE RESO- 

L UTIONS. 

The first settlement effected in Kentucky only- 
dates from 1774. The whole of her growh up to 
1798 was, therefore, embraced in the brief period 
of twenty-four years. And in addition to this 
the dark days of the Revolution almost entirely 
checked emigration from the older States/ Not 
only were the calls at home all engrossing, but the 
Indians, under the stimulus of British excitation, 
were unusually warlike. Thus the first years re- 
peated the old story of frontier struggle. The little 
ground won was gained hardly and retained by 
desperate means. But the war once over, a perfect 
tide of emigration swept over the mountains. The 
termination of a great war always throws upon a 
country a band of restless spirits, to whose ex- 
istence excitement has become well-nigh a neces- 
sity. Some escape or some proper application of 
this spirit is necessary to the peace and well-being 
of the State. The veterans of the Revolution found 

* A few scattered stockades and block-houses were the 
only semblance of settlement till about the end of the war, 
and these were more in the nature of hunters', trappers', and 
traders' posts than the beginnings of actual settlement. 

21 



22 Kentucky s Growth 

it in the exploration and colonization of the west. 

The story of the efforts in the more northerly 
States in the settlement of the country north of 
the Ohio has been frequently told. Though the 
southern emigration to Kentucky and Tennessee 
has been less ably dealt with, it has even more of 
interest attaching to it, and is enlivened by inci- 
dents full of the spirit of romance. In Kentucky, 
at the close of the war, the foundation had been 
laid, the country had been thoroughly explored, and 
the need was mainly of settlers to occupy and 
possess the land. Virginia encouraged emigration 
in every way. Her soldiers received large grants, 
and many occupied them in person. The North 
Carolinians, who had been so prominent in early 
days, having given among other eminent names, 
those of Boone, her typical pioneer, and of Shelby, 
her first governor, continued to pour in. Maryland, 
too, sent a large number of settlers. Except from 
these three States there were very few emigrants to 
this country, those from the more northerly States 
being more prominent than numerous. The growth] 
was surprisingly rapid ; in 1790 there were already 
more than 73,000 inhabitants, which number had 
grown to 220,955 in 1800 ; a wonderful exhibit for 
a period of tv«^enty-six years. In 1798 the number 
of inhabitants must have approximated 200,000. 
These were collected in several little groups, not 
scattered broadcast throughout the land. The 
most important centres v/ere in Fayette County, 
about Lexington, in Lincoln County, about Dan- 
ville, and in Jefferson County, about Louisville. 



Towards the Resolutions, 23 

The population still retained the characteristics 
of a frontier people. Impatient of restraint, they 
were rash and adventurous. Placing an exalted 
value upon personal courage but too often accord- 
ing praise to recklessness rather than to calm, un- 
pretentious heroism, they exaggerated personal 
privileges and repelled any breach of them with 
unnecessary violence. The love of adventure too 
often degenerated into a mere thirst for excitement, 
and the spirit of the backswoods hero into the love 
of horse-races, cock-fights and games of chance. But 
on the other side of their nature they were frank, 
manly, and generous, living with an easy and open- 
handed hospitality that was very attractive and has 
passed into a proverb. And in all things, in word 
and act, they were full of nature's own gift of an 
untrammelled love of liberty, crude and unformed 
beyond the nomad spirit sometimes, as when it drove 
the aged Boone to the wilds of Missouri because 
he could not find room to breathe in Kentucky, but 
rising with the temper of the times to an intelligent 
and not-to-be-denied demand of political indepen- 
dence. Whatever trespassed on it was jealously 
[^regarded. Where any thing, in whatever domain, 
has acquired a special sensitiveness, its guardians 
do not have to look long or seek far for an injury. 
And so it was that within ten years from the first 
settlement the cry was raised that injustice was 
being done by Virginia to her District beyond the 
mountains, that her laws were oppressive to its 
people and that their personal liberty was curtailed. 
It was not a groundless cry in some respects. But 



24 Keittuckys G^^owth 

Virginia ^vas alv.ays a cherishing mother to Ken- 
tucky. The complications did not grow out of con- 
scious neglect and still less out of deliberate oppres- 
sion. But the difficulties of communication were 
ver}" great, the wave of immigration had overpassed 
the mountains and a great uninhabited inten-al was 
thus left to make intercourse slow and difficult, 
and as yet the road was exceedingly dangerous ; 
while to delays and casualties growing out of bad 
roads and mountain passes, the uncertainties of 
travel through a countr}^ invested by roving bands 
of hostile savages had to be added. Virginia natur- 
ally sometimes lost sight of the peculiar needs of a 
part of the State so cut off, so badly represented, 
and so distinct in its needs, in her legislation. Thus 
little by little complaints arose affecting all branches 
of the government, judiciar}', legislative, and execu- 
tive, and at last these complaints grew to a demand 
for complete independence. 

The first issue actually raised grew out of military 
affairs. Kentucky was singularly situated in respect 
to the Indians- Her territor}' was almost entirely 
without permanent settlements. It was a common 
hunting-ground, abounding in game, and attracting 
the various tribes from the bordering States to 
frequent expeditions. Naturally enough collisions 
were of constant occurrence, and it was almost as 
much a battle as a hunting-ground, justifying the 
Indian name which signifies " the dark and bloody 
ground." This circumstance made it easier to 
plant the first settlements, since they were made on 
unoccupied ground, but it made their maintenance 



Towards the Resolutions, 25 

much more difficult, because the roving war- 
parties had not been in any wise dispossessed or 
reduced in numbers, and made their periodical 
returns as of old. The only difference, appa- 
rently, was that instead of tribe slaughtering tribe 
in their predatory incursions they all now fell 
upon the white man. It was an anomalous state 
of affairs, and it is probable that the Virginia 
authorities did not fully comprehend the situation. 
A somewhat analogous experience had fallen to 
the lot of the settlers in the region west of the 
mountains at the head-waters of the New, Holston, 
and other rivers, known collectively as " the West- 
ern Waters," which became the counties of Wash- 
ington, Fincastle, Bottetourt, and so forth, during 
the war period, who were the victims of frequent 
raids from the Cherokee towns just within the 
depths of the wilderness. But the Indians were 
then under the manipulation of British and Tory 
agents, and at other times rarely proved the ag- 
gressors. Here the Indians made dash after dash 
and harried the settlers sadly. The only remedy 
was to be found in retaliation, and the arrangement 
of the militia under Virginia's laws made this most 
difficult. The governors disapproved of it, and the 
federal war department made more than one com- 
plaint of these expeditions as stirring up trouble 
and violating treaties. The Kentuckians were in 
the grasp of a necessity that knev/ no law, and 
Colonel Benjamin Logan invited a number of 
militia officers to an informal conference at Dan- 
ville in the summer of 1784. Those present de- 



26 Kentucky s Growth 

cided to call a convention in December to discuss 
the military situation. This convention was of the 
opinion that Virginia ought to be asked to grant a 
separation, as otherwise the good of the western 
counties would be prejudiced ; but fearing a lack 
of authority, the question was referred to another 
convention to meet in May, 1785. This convention 
also found it expedient to refer the situation to an- 
other, called to meet almost immediately, in August. 
A request for autonomy Vv^as formally made to Vir- 
ginia and addreses were made to the people setting 
forth the necessity of separation. During the 
course of these events a strong party had sprung 
up, so bent on separation as to be willing to go to 
the greatest lengths in order to obtain it. The talk 
even thus early was needlessly violent, and pointed 
to more vigorous measures than the necessity of the 
case seems to have demanded. To men of this stamp 
the news that Virginia, by an act passed in January, 
1786, had acceded to the request for a separation 
was almost a disappointment. This act authorizing 
the people to erect themselves into a State is gen- 
erally known as the first enabling act. Its full text 
was not received until some time after the rumor of 
its passage had arrived. When it was known, cer- 
tain conditions contained therein came as a relief 
to the extreme party. They were simple and 
proper, but some of them were very unpopular. 
The principal conditions required, first, the adop- ]/ 
tion of a proper constitution, a participation in the 
debt of the old State, a recognition of old land- 
grants, and equal treatment to Virginia land- 



Towards the Resolutions. 27 

owners, and that the consent of the Federal Con- 
gress be obtained before June i, 1787, to receive 
the new State into the Federation ; and then the 
separation was to be made perfect upon a day to be 
named subsequent to September i, 1787. The 
delay necessitated by the last clause was eminently 
unsatisfactory to the impatient. They chafed under 
it, but the temper of the people showed itself as 
fully en rapport with the Virginia programme, and 
the situation was quietly accepted. Misunder- 
standings, however, arose, and Virginia in October 
of the same year passed another act delaying the 
separation till January i, 1789, and fixing July 4, 
1788, as the date prior to which Congress should 
consent to receive the new State into the Federa- 
tion. This was very much more unpopular than 
the former act, but was complied with at the time 
by quietly recognizing it as final. 

Meanwhile the military affairs were growing less 
important, and the two meetings held in Danville, 
in 1787, the one in May and the other in September, 
brought another question into prominence. As the 
country grew the difficulties that were felt in trans- 
actions beyond the mountains were greatly increased 
by the advent of commerce. Transportation of 
large quantities of goods was both expensive and 
difficult. And the products of the State were all 
agricultural, and the imports were all the necessaries 
of life, except their food. The imports would come 
to them, but at a high price ; their exports, on the 
other hand, could with difficulty find a market at 
any price. At such a time it was only natural that 



28 Kentucky s Growth 

the great system of rivers pouring their waters to 
the Gulf should be pointed to as the natural avenue 
of their trade. But Spain owned all the western 
bank of the Mississippi, and the eastern bank to 31° 
of north latitude, and guarded with jealous care the 
traffic on the great western highway. There was 
good reason to believe that the western possessions 
of the Federation had a right of use, but this was 
denied, and Spain had the power to enforce her 
claims. The sense of the importance of this outlet 
to Kentucky commerce grew rapidly, and was studi- 
ously fostered by those over hasty in their desire for 
independence, and it was not long till this question 
became the most important one before the people. 
The man who was to be the chief promoter of 
this idea in all its phases, and through it to become 
a most conspicuous^ ^gure in the history of the 
United States, now first appears upon the scene in 
Kentucky. This man was General James Wilkinson. 
He v/as possessed of that precocious genius so com- 
mon to extraordinary times. He was a captain in 
the Continental army at eighteen, had several oppor- 
tunities of distinguishing himself, was an aide-de- 
camp to General Gates at Saratoga, and finally left 
the army as Brevet Brigadier-General. He came to 
Kentucky in 1784 as agent of a Philadelphia trading 
company, and opened a store in Lexington, it being 
the third dry-goods store in Kentucky. He was short 
of stature, but slender in build, elegant in manners, 
easy in his address, and, although already in the, 
most straightened circumstances, dispensed a free- 
handed hospitality that gained him many friends. 



Towards the Resolutions. 29 

As time went on he proved himself able, enterprising, 
and indomitable, and when the opportunity, which 
was now near at hand, offered, he discovered an 
eloquence of that declamatory and florid kind which 
was then so popular. This was the one thing need- 
ful to give him great political influence, and it for 
a long time floated him on the highest tide of popu- 
larity, despite reflections on his truth and probity 
which became constantly more and more wide- 
spread. He was an early convert to the necessity 
of the Mississippi trade to the well-being of 
Kentucky, and came into the field of politics to 
press this single question. Kentucky meanwhile 
overtured Virginia to address Congress on the 
subject, and in compliance therewith the Virginia 
delegates were instructed to urge the importance of 
the free navigation of the- Mississippi on Congress. 
The convention called to meet in July, 1787, 
promised to be most important, and it was expected 
that the contest of the two parties would be very 
sharp. Wilkinson, who seems to have been pe- 
culiarly obnoxious to his opponents and the 
fomentor of all discord, suddenly disappeared. 
The time for the convention came on and still he 
did not appear. The convention opened and went 
on with its deliberations in a quiet and unanimity 
that had been hitherto unknown, and finally ad- 
journed without a single ripple having broken the 
smooth surface of their debates. Meantime specu- 
lation was rife as to what had become of Wilkin3on. 
Various reports were current for a time, but it 
came to be very generally understood that he had 



30 Kentucky s Gi^owth^ 

gone to make trial of the Spaniards on the lower 
Mississippi. It was quite true. Wishing to en- 
force his plans by an object lesson, he collected a 
valuable cargo, and dropped down the river. His 
success was greater than he dared hope for. 
Elated, he returned in great state, in a " chariot " 
drawn by four horses and accompanied by a 
retinue of slaves. Here, indeed, was a transforma- 
tion. He had departed a bankrupt trader, be re- 
turned like a merchant prince. Nor was it all 
empty show, a display on the borrov/ed money of 
too trusting friends, as it had been more than 
hinted that his previous little show had been. He 
displayed with a flourish of trumpets a commercial 
treaty with the Spanish authorities at New Orleans, 
conferring on him the right to export thither all 
the '' productions " of Kentucky free of duty, and 
offering, on behalf of the Spanish government, 
nine dollars and fifty cents per hundredweight for 
tobacco, which had hitherto been sold at two dollars. 
Here, indeed, was a solid triumph, one that scarcely 
any one would refuse to share. 

Despite the glitter of the gold and the jingle of 
the dollars there was no lack of men to ask the 
meaning of this transaction, and why it was that 
while the representatives of Spain in one place re- 
fused on any conditions to open the Mississippi to 
trade, in another place others, on behalf of that 
country, entered into private treaty for the benefit 
of a single State. The charge was easily suggested 
and instantly made, that Wilkinson had been bribed 
by the Spanish government to favor the cause of 



T(m)ards the Resokdions, 3 1 

separation, not only from Virginia but also from 
the Federation, and he was now nothing less than 
the paid agent of a foreign power. 

There is undoubtedly a mystery in this whole 
affair which renders it impossible to speak with 
absolute decision on some points. Whatever may 
have been Wilkinson's designs, and however inti- 
mate the connection between him and such men as 
Brown, Sebastian, Innis, and others, they at this 
time played into each other's hands, and the trend 
of all their action was towards unlicensed separa- 
tion from Virginia, v/ith a very suspicious savor 
of complete severance of all existing ties. Brown 
was delegate in Congress at this time, and hardly 
gave a fair impression to his constituents as to the 
sentiments of that body. He let it be understood 
that there was strong opposition to receiving Ken- 
tucky as a new State, especially if Vermont or 
Maine could not be brought in at the same time ; 
that Congress was responsible for the proposition 
in Jay's proposed Spanish treaty, surrendering the 
navigation of the Mississippi for twenty years ; and 
furthermore, that Congress, and the East especially, 
did not care a rush for Kentucky or the river trade. 
This was bad enough, for in a negative way it left 
a wrong impression. Nevertheless, this much 
might have resulted from a bias growing out of 
prejudices. But he further had a private interview 
with Don Gardoqui, the Spanish ambassador, and 
embodied the results of that consultation in the 
following statement, which was enclosed in a letter 
to Kentucky : 



32 Kentucky s Growth 

"In a conversation I had with Don Gardoqui, 
the Spanish minister, relative to the Mississippi, he 
stated that, if the people of Kentucky would erect 
themselves into an independent State, and appoint 
a proper person to negotiate with him, he had 
authority for that purpose, and would enter into an 
arrangement with them for the exportation of their 
produce to New Orleans on terms of mutual 
advantage." ' 

John Brown also wrote to George Muter, Chief- 
Justice of Kentucky, a letter setting forth the 
same views, and adding the thought that it was 
not to be thought likely that Kentucky would hesi- 
tate any longer to separate herself from Virginia 
by the shortest if the illegal way ; and he also says 
plainly that the idea of Don Gardoqui looked to a 
separation, and, indeed, was conditioned upon a 
separation from the United States. 

Affairs were in this posture when the question of 
ratification of the Constitution of the United States 
was finally settled. Each of the seven counties 
which then composed the district of Kentucky sent 
two delegates to the Virginia convention. The 
men who held the extreme views on the subject of 
independence were very popular, more so than the 
measures they advocated, when the two could be 
separated, and they held nearly all the prominent 
offices, and now formed a great majority of the 
delegates. On the question of ratification they 
voted three for and el-even against, Jefferson 
County casting its whole vote for the Constitution, 
led by the distinguished Robert Breckinridge ; 

' Marshall, vol. i., po 302. 



Towards the Resolutions. 33 

the other vote was that of Humphrey Marshall, of 
Fayette, afterwards the Federalist Senator, and the 
historian of his State. Virginia was the tenth 
State to adopt the Constitution. Congress hearing 
of this, which occurred on June 26, 1788, refused 
on July 3d, the latest possible date, to act on 
Kentucky's application to be received into the 
Federation, and relegated the whole matter to the 
new system which alone it concerned. John 
Brown left for Kentucky in disgust, arid the feeling 
in that State assumed a more radical aspect. 

The failure of Congress to take the requisite 
action, together with further complications between 
Virginia and Kentucky, now necessitated an eighth 
convention in order to determine this question. It 
met in Danville in July, 1789. The contest in Fay- 
ette was again sharp, but this time the tables were 
turned, and Wilkinson by the weight of his per- 
sonal popularity, was elected alone of his party. 
The other four members were from his opponents, 
and headed by Colonel Marshall.^ Wilkinson 
read an essay on the Mississippi navigation and its 
importance to Kentucky, and then said there was 
another present who could more properly lay the 
matter before the convention than he could. 
Thereupon John Brown rose, said briefly that he 
was assured that if unanimous, Spain was ready to 
grant almost any terms, and sat down. A motion 
was made to refer the question of separation without 

^ The father of Chief- Justice Marshall and uncle of Hum- 
phrey Marshall, a dear friend of Washington, and the leading 
spirit among the elder Federalists. 



34 Kentucky s Growth 

the antecedent consent of Virginia to the people, 
and this motion was carried, but by the exertions 
of Colonel Crockett reconsidered, and the conven- 
tion ended by agreeing to all that Virginia now de- 
manded ; and as a result Kentucky passed quietly 
into the Union in June, 1792. 

The universal satisfaction which followed the 
admission into the Union proved sufficiently that 
the great mass of the people really wanted that con- 
summation. Other things, indeed, they desired, 
but this first and most and the others in connection 
with it. Eight years had elapsed since the question 
of separation was first brought into public notice. 
These years had been marked by unceasing agita- 
tion. Nine conventions had been held for this 
single purpose, involving frequent elections and 
public canvasses. Other elections in the natural 
course of events had occurred, and the election of 
delegates to the Virginia convention had brought 
another special discussion before the people. The 
whole concatenation naturally produced an un- 
healthy state of mind. Extreme measures had 
been again and again warmly advocated, visionary 
schemes fostered and encouraged, addresses and 
overtures to every branch of government frequent- 
ly resorted to, so that agitation had come to be 
almost the normal state of political thought. This 
was almost universal. Besides this the leaders of 
the more radical separatists had acquired a violent 
style of oratory, and a passion for discussion that 
could not be readily put away, especially when the 
darling problem of the navigation of the Missis- 



Towards the Resolutiojts, 35 

sippi was yet unsolved. It was not too much to say 
that they never v/ould be content till this was se- 
cured. Kentucky was plainly the most anti-federal 
of States. Her vote had been eleven to three 
against ratification, and this affords a clue to her 
instant opposition to the administration v/hen taken 
in connection vv^ith the Mississippi question. These 
things combined to make her throw herself into the 
arms of the French party, and when France planned, 
through Genet, an expedition against Louisiana, her 
abandonment to that cause vv^as complete. A Demo- 
cratic club of American origin, manly and straight- 
forward in its tone, had long been in existence at 
Danville. Now a number of Democratic societies 
on the French model began to spring up. Several 
were formed in 1793, among them one in Lexing- 
ton, which proceeded to resolve that " the right of 
the people on the waters of the Missisippi to its 
navigation is undoubted, and ought to be peremp- 
torily demanded of Spain by the United States 
Government." Genet's four agents appeared just 
at this time and began to prepare for an expedition 
to the southwest. General George Rogers Clark, 
whose sun was fast setting in an old age of dissipa- 
tion, received a commission as " Major-General in 
the Armies of France, and Commander-in-Chief of 
the revolutionary legions on the Mississippi." 
There was m.uch talk, but apparently very little 
action, the commissioners being more given to 
braggadocio than vv^arlike deeds. Washington no 
sooner heard of this proposed expedition than he 
communicated to the government at Frankfort a 



36 Kerducky s Grcrwth 

very full account of the relations then subsisting 
between this country and Spain, pointing out the 
efforts being made to secure the use of the river, 
and the present prospects of success, and closing 
with an injunction to be on the watch. Says Mr. 
Randolph : ^ " Let this communication then be re- 
ceived, sir, as a warning against the danger to which 
these unauthorized schemes of war may expose the 
United States, and particularly the State of Ken- 
tucky. Let not unfounded suspicions of a tardi- 
ness in government prompt individuals to rash 
efforts in which they cannot be countenanced ; 
which may thwart any favorable advances to their 
cause ; and which, by seizing the direction of the 
military force, must be repressed by law, or they 
will terminate in anarchy. Under whatever auspi- 
ces of a foreign agent these commotions were at 
first raised, the present Minister Plenipotentiary of 
the French Republic has publicly disavowed and 
recalled the commissions which have been granted." 
This letter bore date March 29, 1794. It did not 
have much effect in quieting the State. Extreme 
views were expressed in the Democratic Society at 
Lexington in the middle of May, and a public 
meeting v/as called on May 24th, at which the most 
violent and inflammatory resolutions v^^ere passed. 
The only step taken was the sending of a large part 
of the letter above mentioned to Mr. John Breck- 
inridge, the president of the society, to advise him 

^ Letter and enclosure of copy to John Breckinridge, Pres't 
Lexington Democratic Society, from Isaac Shelby, GoVr 
Kentucky. — Breckinridge Papers. 



Towards the Resolutions. 37 

of the condition of the negotiation, and the atti- 
tude of the administration toward the West. 
About this time John Edwards, one of the first 
Senators, was called up before this society, and in 
a long series of questions was catechized as to what 
the Senate had done, especially in secret session, 
what secret oaths were required of Senators, if any, 
and what part he had played in the secret drama. 
Edwards answered in a dignified and manly way, 
and the society got little satisfaction. 

In the autumn Washington not being satisfied with 
the way things were going forward again communi- 
cated with Governor Shelby. The action of the 
general government was throughout dignified but 
firm, while the governor, asserted that if any man 
had a right to leave the State any number had the 
same right ; that the State recognized the right of 
its citizens to bear arms, and could not set up an 
inquisition to inquire into the intent for which they 
bore arms ; in short, that the government desired 
him to arrest respectable citizens on the suspicion 
of an intent, which was unthinkable. 

The French schemes gradually fell through, and 
a return was had to the old channel of a treaty 
with Spain. In July, 1795, Governor Carondelet 
sent one Thomas Power to see what could be done. 
A letter was sent to Judge Sebastian of the court 
of appeals of the State, who had belonged to the 
old coterie of Spanish inclinations. It was shown 
to others, and General Wilkinson who was on the 
northern frontier was again communicated with. 
It is unnecessary to attempt to unravel the tortuous 



38 Kentucky s Growth 

maze of these Spanish negotiations. That they 
existed and that they were renewed in 1797 cannot 
be denied, although the exact part played by the 
different actors is as yet uncertain. Whatever may 
have been the wishes of a few a period was put to 
any general inclination to such a course by the 
treaty with Spain in the autumn of 1795, which 
opened the Mississippi and gave a place of deposit 
at New Orleans. So great was the reaction caused 
by the excesses of Genet that the Federalists were 
able to elect Humphrey Marshall to the Senate, 
and this treaty carried it still further. The great 
mass of the people had always felt themselves 
a part of the United States and hesitated to 
think of any proposition looking towards sepa- 
ration. They received this as earnest of a desire 
to legislate for their good, equally with that of 
the older States, and, though the devotion to the 
administration was short-lived, and though they 
seriously opposed the excise, still cherished an at- 
tachment to France, and blazed out against the 
Alien and Sedition laws, the seeds of entire loyalty 
had been so well sown, that when the election of 
Jefferson proclaimed the triumph of the extreme 
Democratic school, they gave an adherence to the 
Union that has been sincere and enthusiastic to 
this day. 

More space has perhaps been given to this ac- 
count of the grov/th of public opinion in Kentucky 
than was necessary. And yet it is very important 
that it should be kept well in mind, in order to clearly 
understand the nature of the movement resulting 



Towards the Resolutions. 39 

from the odious acts of 1798. A single further 
example, while it may be regarded as extreme, will 
yet throw some additional light on a type of p o-_^ 
litical opinion which was not uncommon. In early ^ 
times in Indiana a political libel suit was tried in ' 
the Franklin Circuit Court. The principal allega- 
tion was that the defendant had called the plaintiff 
an old Federalist. The issue was made up on this 
as an agreed statement of facts, and proof was 
taken as to whether the offence constituted a libel. 
The chief witness was an old man named Herndon, 
who had moved to Indiana from Kentucky. He 
swore that he considered it libelous to call a man a 
Federalist ; that he would shoot a man who called 
him either a horse thief or a Federalist ; that he 
would rather be called any thing under heaven 
than a Federalist ; and regarded a thousand dol- 
lars as the least measure of damxages ; that he con- 
sidered the term as equivalent to Tory, or enemy of 
his country, and from the earliest days of Kentucky 
such he believed to have been the common accep- 
tation of the term. Other witnesses coroborated 
this testimony and the jury found a verdict to the 
effect that " to call a man a Federalist was libelous," 
and fixed the damages at one thousand dollars,^ 

Such an occurrence seems impossible in days of 
calm retrospect, but the bitter invectives and un- 
founded statements that filled the harangues of the 
time were well calculated to distort the judgment 
and fill the minds of men with erroneous and totally 

false ideas. 

.■— ~% 

^^- 1 ^ Early Indiana Trials," etc., by O. H. Smith, Senator in 
Congress, etc., p. 120. 



40 Kentucky s Growth. 

Such was the temper of the people and the times 
in Kentucky when the news was slowly brought to 
them of the progress of events at the seat of gov- 
ernment. It does not require any very acute stu- 
dent of history to see how the people and the times 
interacted on each other, nor how fully in accord 
they were just at this time. The stubble v/as dry ; 
with the first breath of flame it v/as ready to spring 
into full blaze. It/was one great conflagration from 
the moment that it was known that the Alien and 
Seditions acts were likely to pass the houses and 
become laws. 
-^ It is easy to understand the profound impression 
made in Kentucky by the Alien and Sedition laws, 
when the feeling in other and less radically Demo- 
cratic States is remembered and their past history 
considered. The very frame of society seemed to 
be shaken. The sentiment was unanimous that 
these measures were transgressions of the limits 
fixed by the Constitution and aimed at the subver- 
sion of the very foundations of liberty. All the 
old machinery was at once put in motion, and 
county after county passed resolutions condemning 
these laws. Public dinners were held at which 
toasts were drunk in honor of France, of the two 
great opponents of these laws, Livingston of New 
York and Gallatin of Pennsylvania, to whom John 
Nicholas of Virginia was sometimes added, of the 
Vice-President, '* the bulwark of liberty," and also 
to the right to the navigation of the Mississippi, to 
the inviolability of the Constitution, etc., the Presi- 
dent in all cases being conspicuous by the absence 



Towards the Resohdions, 41 

of any mention of his name. A spirit of opposition 
was born of the instant, and the advocacy of resist- 
ance steadily increased. The means and methods 
of that resistance alone formed subject of debate. 
The resolutions passed at a meeting of the citizens 
of the influential county of Clark will give an idea 
of the opinions expressed in all. They were the 
first of the series and passed so early as July 24th. 

First. Resolved, That every officer of the Fed- 
eral government, whether legislative, executive, or 
judicial, is the servant of the people, and is amena- 
ble and accountable to them : That being so, it be- 
comes the people to v/atch over their conduct with 
vigilance and to censure and remove them as they 
may judge expedient : That the more elevated the 
office and the more important the duties connected 
with it may be, the more important is a scrutiny 
and examination into the conduct of the officer ; 
And that to repose a blind and implicit reliance in 
the conduct of any such officer or servant is doing 
injustice to ourselves. 

Second. Resolved., That war with France is im- 
politic, and must be ruinous to America in her 
present situation. 

Third. Resolved, That we will, at the hazard of 
our lives and fortunes, support the Union, the in- 
dependence, the Constitution, and the liberty of the 
United States. 

Fourth. Resolved, That an alliance with Great 
Britain would be dangerous and impolitic ; that 
should defensive exertions be found necessary, we 
would rather support the burthen of them alone 
than embark our interests and happiness with that 
corrupt and tottering monarchy. 

Fifth. Resolved, That the powers given to the 
President to raise armies when he may judge neces- 



42 Kentucky's Growth 

sary — without restriction as to number — and to 
borrow money to support them, without limitation 
as to the sum to be borrowed or the quantum of 
interest to be given on the loan, are dangerous and 
unconstitutional. 

Sixth. Resolved^ That the Alien bill is unconsti- 
tutional, impolitic, unjust, and disgraceful to the 
American character. 

Seve?tth. Resolved^ That the privilege of printing 
and publishing our sentiments on all public ques- 
tions is inestimable, and that it is unequivocally 
acknowledged and secured to us by the Constitu- 
tion of the United States ; that all the laws made 
to impair or destroy it are void, and that we will 
exercise and assert our just right in opposition to 
any law that may be passed to deprive us of it. 

Eighth. Resolved^ That the bill which is said to 
be now before Congress, defining the crime of trea- 
son and sedition and prescribing the punishments 
therefor, as it has been presented to the public, is 
the most abominable that was ever attempted to be 
imposed upon a nation of free men. 

Ninth. Resolved, That there is a sufficient rea- 
son to believe, and we do believe, that our liberties 
are in danger ; and we pledge ourselves to each 
other and to our country that we will defend them 
against all unconstitutional attacks that may be 
made upon them. 

Tenth. Resolved, That the foregoing resolutions 
be transmitted to our representative in Congress 
by the chairman, certified by the secretary, and that 
he be requested to present them to each branch of 
the Legislature and to the President, and that they 
also be published in the Kentucky Gazette. 

Jacob Fishback, Ch. 

Attest : R. Higgins, Sec. 

In Fayette County no sooner was the news of 
the passage of the acts known than a spontaneous 



l^owards the Resohdions, 43 

assemblage gathered in Lexington. Henry Clay- 
was a young man of twenty-one at the time, newly 
come from Virginia, almost unknown, and hitherto 
unheard. The crowd hustled him into a wagon 
and told him to tell them the state of affairs. It 
was a splendid opportunity for a born orator, and 
he ably improved it. His own opinions and those 
of the crowd closely coincided. Youth gave bold- 
ness to his words if it detracted from his judgment. 
So, throwing himself without reserve into his sub- 
ject, he denounced the hated laws with bold invec- 
tives, to the eminent satisfaction of his hearers and 
his own repute. The field wherein this youthful 
champion first fleshed his blade was too important 
to be left even to such an one. The tv/o most able 
members of the bar, George Nicholas and John 
Breckinridge, came to the front at once. A 
meeting was held and resolutions were passed of 
the same general tenor with those which emanated 
from other counties. But George Nicholas was 
not content with this. After playing a most im- 
portant part in the Virginia convention which rati- 
fied the Constitution, this able barrister moved to 
Lexington and early became prominent both in 
politics and at the bar. He v/as a brother of John 
Nicholas, member of Congress from Virginia, who 
ably combated these very laws and was prominent in 
securing their repeal. Another brother was Colonel 
Wilson Carey Nicholas, the intimate friend of Jef- 
ferson, senator and governor of Virginia, one of the 
ablest of the younger generation of Virginia States- 
men ; and a third, Judge Philip Narbonne Nicholas, 



44 Kentucky s Growth 

of Richmond, Virginia ; while a sister was the wife 
of Edmund Randolph. Their father was Robert 
Carter Nicholas, the last Royal and first State Treas- 
urer of Virginia, and a grandson of old Robert. 
Carter, popularly known as " King " Carter, who 
owned sixty-three thousand acres in the valley of 
Virginia, and was president of the council, lieuten- 
ant-governor, and acting governor of the province 
in the good old days of the colony. He thus com- 
bined the factors needful in the States of Kentucky 
and Virginia, namely, democratic sentiments com- 
bined with great family influence and distinguished 
descent. It seems a strange mixture, but it was the 
one that gave the greatest influence. Nicholas had 
now retired from active politics, but was still in full 
practice at the bar, and was a professor in the law 
department of Transylvania University. He used 
his private influence freely, and published a card 
entitled The Political Creed of George Nicholas, in 
the Kentucky Gazette for August i, 1798. It is as 
follows : 

" In vindication of my right as a free citizen of 
the United States to, and as an exercise of, the in- 
valuable privilege of speaking and publishing my 
sentiments of the official conduct of those who 
have been appointed to administer the government 
of the United States, and which is in itself so ines- 
timable that the want of it must render all other 
earthly things of no value : I do solemnly declare 
that I do verily believe that the majority of the 
Legislature of the United States who voted for the 
act entitled ' An act in addition to the act for the 
punishment of certain crimes against the United 



Towards the Resolutions, 45 

States,' have violated that clause in the Constitu- 
tion of the United States which declares that * Con- 
gress shall make no law respecting an establishment 
of religion, or prohibiting the free exercise thereof, 
or abridging the freedom of speech, or of the 
press, or the right of the people peaceably to as- 
semble and to petition the government for a redress 
of grievances.' 

" And I do further solemnly declare that I do 
verily believe, if the President of the United States 
hath approved the said act, and if any of the 
judges have by any official transaction endeavored 
to enforce it, that they have also violated that part 
of the Constitution." 

This was followed up by " a letter to a friend in 
Virginia," which he caused to be printed and very 
widely circulated, giving a clear expression to his 
views. Here the active part taken by Nicholas 
ceased. An error has crept into many of the 
ablest histories of the United States, to the effect 
that he introduced the Resolutions into the Ken- 
tucky House of Representatives in November, 
1798, but he was not a member of that body, and 
the error is one of comparatively recent origin. 

On the 2 2d of August, a writer who signed himself 
Philo-Agis, and who voted against the otherwise 
unanimous resolutions of Clark County, discussed 
the situation in a letter to the Kentucky Gazette. 
He explains that his opposition to the action taken 
in Clark did not arise out of any friendship for the 
principles enunciated in the Alien and Sedition 
laws, but out of a hesitancy to adopt the measures 
proposed by the Resolutions. He then proceeded 
to express his opinion of the proper course to be 



4-6 Kenhtckys Growth 

pursued, to this effect : " My plan is this : let the 
legislature of Kentucky be immediately convened 
by the governor, let them pass resolutions praying 
for a repeal of every obnoxious and unconstitutional 
act of Congress." This plan rapidly grew in popu- 
larity in the main. Not, hov/ever, in the call of a 
special session, though that was widely favored at 
first, but all eyes by common consent were directed 
towards the autumn session of the legislature as the 
proper place for action on these laws. Meanwhile, 
county after county fell into line with its resolutions, 
all of them closely alike in tone, most of them in 
form. A common formula was apparently used, 
and the greatest unanimity was everywhere appar- 
ent. Very bitter feeling was engendered in the 
State as the autumn slipped away, by letters written 
by over-zealous Federalists in Kentucky to eastern 
friends, and published by them. Some of these 
letters were gross misrepresentations, and when they 
were copied into Kentucky papers the indignation 
that was stirred up was such that it would have gone 
hardly with the writers if they had been discovered. 
Some of the eastern papers also gave garbled ac- 
counts of the proceedings which came to them as 
general news. Thus Peter Porcupine gave the fol- 
lowing account of the meeting at Lexington which 
adopted the Resolutions. It was published on the 
2ist of Septem^ber, and is an excellent specimen of 
its class. It will be noticed that it confuses the 
Clark and Fayette meetings, designating the former 
by all the references and locating it at Lexington. 

" At Lexington (Kentucky) a mob assembled on 



Towards the Resolutions, 47 

the 24th of July, with a fellow of the nameof Fish- 
back at their head ; they got pen, ink, and paper, 
and to work they went, drawing up resolves to the 
number of ten, amongst which is the following one, 
which, for sentiment as well as orthography, is un- 
equalled even in the annals of American Democracy. 
" ' Resolvd, that thar es sufishunt resen to 
beleev, and wee doe beleev, that our leebeerte es in 
daingur, and wee plege ourselves too echeother, and 
too ouer countery, that wee will defende um agenst 
awl unconstetushonal ataks that mey bee mede upon 



It must have been a very credulous people who 
could be at all imposed on by such feeble efforts as 
constitute the class to which this belonged, but party 
spirit ran equally strong in both directions. George 
Nicholas had achieved for himself so honorable a 
reputation that he was big game to these scribblers, 
and was given that meed of scurility which was at 
that time the penalty of prominence. 

In order that the best results might be reaped 
from the existing agitation, and that Kentucky Re- 
publicanism might make its protest in the most 
effective manner, it was necessary that some cham- 
pion should be fixed on to marshal the forces and 
lead in the assault. Eminently qualified as George 
Nicholas was for such a task, he was now in the 
decline of life, out of office, and, perhaps, person- 
ally averse to so arduous an undertaking. The 
desired leader was found in a young and ardent 
friend of Nicholas, who, after a number of years of 
separation, had, by his recent removal to Kentucky, 
reknit and strengthened the old ties, and probably 



48 Kentucky s Growth, 

through Nicholas' influence succeeded him as At- 
torney-General. This was John Breckinridge. The 
connection of Mr. Breckinridge with the Kentucky 
Resolutions, and all the circumstances connected 
with them, is so intimate, and he has failed so en- 
tirely to secure the recognition which was his due 
from those who came after him, that his life and 
labors will be recounted here somewhat at length. 



CHAPTER III. 

JOHN BRECKINRIDGE, THE MOVER OF THE 
RE SOL UTIONS. 

John Breckinridge was sprung from a sturdy 
Scotch-Irish stock. His ancestry, in the earliest 
days to which they can be traced, lived in Ayrshire, 
and are found sharing the sentiments for which 
their friends and neighbors became famous. They 
were early converted to Protestantism, and became 
staunch Calvinists and Covenanters in due course. 
The wars of the Puritan revolution brought little 
good to their county or themselves, and between 
king and commons, Papists and Protestants, Pres- 
byterians and Independents, and a hundred fac- 
tional bitternesses^, they were sorely crushed and 
harried. But there was even a worse fate in store 
for them. The seemingly tireless struggle of years 
wore itself out, and sank to rest beneath the firm 
hand of Cromwell, and for a brief space there was a 
lull in the storm, but when Charles the Second, " that 
young man that was the late king's son," as Crom- 
well called him, found himself firmly seated on his 
throne, he woke once more the old issues. Fear- 
ing his vengeance, the heads of the Breckinridge 
family, together with many others who had played 

49 



50 yohn Breckinridge 

a prominent part in the wars of the Covenant, for- 
sook their homes and fled to the Highlands. The 
Breckinridges found a safe retreat in Breadalbane, 
and though they only remained there a short time, 
with grateful hearts they remembered those who 
had befriended them in adversity, and the name of ' 
their highland refuge, commemorated for genera- 
tions in the names of new seats beyond the sea, 
still sounds like an echo of home to a Breckinridge's 
ear. When quiet had once more succeeded to ad- 
versity, the hunted refugees crossed over into 
North Ireland, and, under the rule of William and 
Anne, regained their former prosperity to a very 
great degree. It was probably owing to the en- 
forced wanderings of these years, which had bred 
a spirit of unrest, that in 1728 a new emigration 
began. There is no complete record of those of 
this family who came to America. A family tradi- 
tion is to the effect that three brothers came over 
together with their families, but although this can- 
not now be certainly ascertained, it is probable 
that a number of the family came together. Of 
these was Alexander Breckinridge, and with him 
came his wife and a numerous family. He fol- 
lowed the track his countrymen were marking 
broadly out, vv^estward through Pennsylvania, filling 
the great central valley, thence trending southward 
into Virginia, and spreading out in the frontier 
settlements. He made a brief stay in central 
Pennsylvania, and then removed to Augusta 
County, Virginia, and settled upon a tract of 
land, upon a part of v/hich now stands the town of 



The Mover of the Resolutions, 5 1 

Staunton. Augusta was then the frontier county, 
stretching away with as yet undefined limits, the 
hazy claims of France and North Carolina being 
too indefinite to give it any certain boundaries. 

Here the father of John Breckinridge, Robert 
Breckinridge, grew to manhood and succeeded to 
his father's farm. He became a prominent man in 
his community, being King's Lieutenant of his 
county, and Colonel of the county levies. He mar- 
ried first a Miss Pogue, who bore him two sons, 
Alexander and Robert Breckinridge, and, after her 
early death, Lettice Preston, the daughter of John 
and Elizabeth Patton Preston. The Prestons were 
also from North Ireland, and a family of most 
marked individuality. The foundation, however, was 
English, and not Scotch. The family came originally 
out of Lancashire or the western ridings of York- 
shire, in both of which locations there were strong 
and kindred stocks of the name ; and the extraor- 
dinary resemblance preserved to the present day, 
both to the Yorkshire and Lancashire branches and 
the American offshoot, seems to show that the 
Norfolk family of Prestons is a scion from the 
same stock. Two of these Prestons crossed over 
into Ireland with the army of King William the 
Third, and served about Londonderry, where one 
of them married and made his home. From him 
John Preston was descended. 

John Breckinridge, the second child of this mar- 
riage, was born on the second day of December, 
1760, His early childhood was passed on tho old 
estate, but while he was still a child his father re- 



52 John Breckinridge^ 

moved farther west and settled near Fincastle, in 
what is now Botetourt County, where he soon 
after died in 1771. His elder sons had grown to 
manhood, but he left a wife and five young chil- 
dren, four of whom were sons, upon the very con- 
fines of civilization, and at the beginning of a period 
of war and deprivation. The Virginia frontier suf- 
fered severely throughout the Revolution, being 
constantly vexed by Tories at home, the inroads of 
the savages stirred up by British and Tory agents, 
and the scarcity of all the comforts of life, and it 
was not till the victory of King's Mountain hurled 
back the tide of invasion refluent to the sea and 
quelled the restless Tories in their midst, that any res- 
pite came to the harassed population along the west- 
ern lines. During these years John Breckinridge, 
although only the second son of his mother, as- 
sumed the chief part in bearing the burden of the 
family. His character was early developed under 
the pressure of circumstances, and he cared for the 
family property, scoured the country as a surveyor, 
and occupied every leisure moment with eager and 
well-directed studies ; and the autumn of 1778 
found him prepared to enter college. He accord- 
ingly set out over the mountains and through the wil- 
derness to the capital town of Williamsburgh, and 
entered himself at the good old college of William 
and Mary. Here he continued for two years, tak- 
ing every advantage of his opportunities, and con- 
tinuing his surveying in the western wilds in the 
vacations. He was about to set out from home for 
his third year at college when he was elected to 



The Mover of the Resohdions, 53 

represent his county in the House of Delegates. 
This was in the autumn of 1780, when he was only 
nineteen years of age. He had made no canvass, 
and was in no true sense a candidate. His election 
was the result of one of those silent movements 
when men are brought, under the pressure of events, 
to select those who can best represent them, with- 
out regard to the much-pressed claims of office- 
seekers. No one could have been more surprised 
at his election than was John Breckinridge himself, 
but he cheerfully undertook the task imposed upon 
him, and set out for Williamsburgh. The House 
of Delegates, however, set aside the election on 
account of his youth, feeling, no doubt, that the 
choice was both unprecedented and out of place in a 
time so full of danger and demanding the most 
far-sighted counsels. But the hardy frontiersmen 
had not made their choice without being convinced 
of its wisdom, and promptly reelected Mr. Breck- 
inridge. The house again set the election aside, 
and again the electors cast their ballots as before, 
and this time the election was acquiesced in, and 
the young student left his academic pursuits in the 
one part of the town, and took his seat in the coun- 
cil hall at the other. 

The youngest in any body of men is apt to be 
the object of kindly interest to the older members, Ijj 

especially if he unites to ability and manliness, 
modesty and deference. Throughout the contest 
over his seat young Breckinridge had shown the 
qualities which raised him to eminence in after 
days, and as soon as he took his seat his quiet, un- 



54 jfohn Breckinridge, 

assuming ways made him a friend of every one. 
These circumstances early made him a man of no 
small mark in the distinguished body of which he 
was a member, and those about him soon came to 
understand the spell which had caused the hardy 
mountaineers to press him upon them by the war- 
rant of three elections. Thus happily he entered 
upon his political career, and his constituents con- 
tinued their support, until, in 1785, he left their 
district and removed to Albemarle County. Dur- 
ing these years he was often prominent in the 
House of Delegates. His name appears upon 
many important committees, and he took a favor- 
ing part in the legislation of those years, directed 
towards the development of that part of the State 
which afterwards became the State of Kentucky. 
In the intervals of legislative labors he devoted 
himself to the study of law, and being admitted 
to the bar in 1785, he resigned his seat at the con- 
clusion of the session of that year and began his 
practice in the courts of Charlottesville. 

In the same year he married Miss Mary 
Hopkins Cabell, a woman of most brilliant and 
original mind, and of honorable descent. The 
Cabells were an old West of England family, living 
about Frome in Somersetshire. In the old church 
of St. Nicholas in that town, a memorial window of 
the Cabell family dating from early Tudor times is 
yet to be seen, and the elder branch of the family 
occupying to this day its ancient seats in the neigh- 
boring counties, still owns and claims its American 
kindred. 



The Mover of the Resolutions, 5 5 

Charlottesville was near the home of Jefferson, 
and here, immediately upon the return of that emi- 
nent statesman from the court of St. Denis, began 
the friendship between these two men which was to 
have such a controlling influence on Mr. Breckin- 
ridge's life. Mr. Jefferson writing of his first visit, 
to Joseph Cabell Breckinridge, twenty-five years 
after its occurrence, says : *^ Our acquaintance arose 
soon after my return from Europe. He was so kind 
as to favor me with a visit, and during its short con- 
tinuance I had opportunity sufficient to discover the 
large scope of his mind the stores of informa- 
tion laid up in it, and the moral direction given 
to both." ^ Here too he formed intimate friend- 
ships with Monroe, John Marshall, the Nicholases, 
and others who were fast rising at the bar and in 
politics. The influence of these early ties may be 
traced throughout his too brief career. In his pro- 
fession he quickly revealed talents of a high order. 
Arduous and assiduous in his labors, with a well- 
trained and logical mind, and a vigorous and manly 
eloquence, less florid, indeed, than the style then 
so popular in Virginia, but too earnest and forceful 
not to command respect, — he rapidly rose to dis- 
tinction, even challenging, on an important occa- 
sion, comparison with Patrick Henry, then in the 
zenith of his fame. However great he v/as as an 
orator and an advocate, and however much he may 
have achieved in this department of his profession, 
it was rather in its higher walks that he most de- 
sired to succeed, and for a mastery of legal princi= 
^ Jefferson to J. C. Breckinridge, June .12, 1815. 



56 jfohn Breckinridge, 

pies and the exercise of a vigorous logical faculty 
his reputation grew steadily throughout his life. 
One of the earliest, as it was the highest possible, 
testimonials to his success was given by John Mar- 
shall, who when he was called to the bench of his 
native State turned over to Mr. Breckinridge his 
unfinished business. 

Mr. Breckinridge had been practising law a lit- 
tle more than five years when Mr. Jefferson, at 
that time Secretary of State under Washington, 
embraced an opportunity to show his confidence 
in him in a public manner. Kentucky was in 
an uncertain temper, and the vacant office of 
attorney needed a capable man to fill it. The 
President was casting about for such a man, and 
finally appointed Mr. Breckinridge. Jefferson 
wrote to him enclosing the commission and urged 
him to accept it. He said that the President wished 
it and had heard him spoken of by others than 
himself in high terms. Such pressure was too 
flattering to be easily resisted, but this man was of 
too noble a nature to yield unwisely to honors even 
when thrust upon him, and he declined the office, 
while in later years he accepted the somewhat sim- 
ilar post of Attorney-General of Kentucky when 
called to it under less outward pressure but with 
greater promise of usefulness. 

Soon after this he again turned his attention to 
politics and was chosen to represent the district 
composed of the counties of Albemarle, Amherst, 
Fluvanna, Goochland, Louisa, Spottsylvania, Or- 
ange, and Culpeper, in the third Congress which 



The Mover of the Resolutions, 5 7 

assembled in the Autumn of 1793. For a moment 
it seemed as if he was once more to take his place 
by the side of the comrades of his early political 
life, and become a member of that little coterie of 
eminent Republicans and statesmen, who so ably 
represented this part of Virginia in the highest 
posts of State and nation. But the promise was 
cut short by the demands of his private affairs. In 
the interval between his election and the assembling 
of Congress his plans underwent a complete meta- 
morphosis, and he resigned the seat he had never 
occupied and set out for Kentucky. 

He went at once to Lexington, the county-seat 
of Fayette County, the capital of the State, and the 
largest and most important town v/est of Pitts- 
burg. Two of his brothers and his only sister 
had already removed to the neighborhood of Lex- 
ington, and his half-brother Robert Breckinridge, 
who was at this time a member of the House of 
Representatives, spent a large part of the year there 
in attendance on the meetings of that body. There 
too was George Nicholas, his friend of many years' 
standing, now the leader of the Kentucky bar and 
high in political influence. Besides these there 
were many others both friends and relatives in and 
about the flourishing little town. Although he 
proposed to devote himself mainly to the practice 
of his profession, he purchased a large tract of land 
containing about twenty-five hundred acres, lying 
to the north of the town, about six miles distant. 
The place received the name of " Cabell's Dale," 
in honor of his wife, and a law office was built 



58 yohn Breckinridge^ 

and his practice carried on both there and in Lex- 
ington. 

His practice and reputation grew rapidly, and he 
soon found himself among the foremost members 
of the bar and a leader in politics. He had been 
in Kentucky only a few months when. he was made 
president of the Democratic Society of Lexington, 
which in that day was esteemed a very high honor ; 
and in the legislature which convened late in 1794 
he received the Anti-Federalist or Republican vote 
for the United States Senate. This election coming 
as it did in the height of the reaction towards Fed- 
eralism brought about by the indiscretions of the 
agents of the French Directory, was practically un- 
contested, and the vote given to Mr. Breckinridge 
was merely complimentary ; but it was certainly a 
high testimony to the esteem in which he was already 
held in his adopted State, and as the sequel showed, 
it was an earnest of future support and triumph. 
The Federalists dropped Edwards, who had been so 
sharply catechized by the Democratic Society at 
Lexington, and elected Humphrey Marshall. 

Mr. Breckinridge no doubt owed the honors so 
early accorded him very largely to the influence of 
his brother, General Robert Breckinridge. Al- 
though only half-brothers, the greatest confidence 
and affection always existed between them The 
elder brother, together with his own brother, Alex- 
ander Breckinridge, had served with courage and 
distinction in the Virginia line during the Revolu- 
tion as a company officer ; taken prisoner, they lay 
for many months in a prison ship in Charleston 



The Mover of the Resolutions. 59 

harbor, and did not obtain their release until the 
close of the \Yar. Soon after this they plunged 
into the Western wilderness as surveyors, and 
finally settled in Jefferson County, Kentucky, near 
the site of Louisville, Here they soon became 
prominent. Alexander Breckinridge was elected 
to the Kentucky convention of 1787, and then 
moved away. Robert Breckinridge became an 
officer in the active and efficient militia, which un- 
der the inefficient policy of Virginia, bore the 
whole burden of protecting the frontier from In- 
dian forays, and rose steadily till he became a gen- 
eral officer. He began his political career in the 
Virginia House of Delegates, where he represented 
his county. His next service was in the Virginia 
Constitutional Convention, where he manfully stood 
for ratification despite the strong anti-federal senti- 
ments of the district of Kentucky. His colleague 
from Jefferson County also voted for ratification, as 
did Humphrey Marshall, of Fayette, the remain- 
ing eleven votes being cast against it. His action 
though unpopular at the time, won him reputation 
in the future and insured his election to the con- 
vention which draughted the first constitution of 
his State and to the first legislature. Upon the 
assembling of that legislature he was chosen 
speaker of the house, w^hich post he held by re- 
peated reelections until he retired from politics at 
the end of his fourth session. He was thus at the 
summit of his influence when his brother came to 
Kentucky, and he left no stone unturned to aid him 
and further his advancement. 



6o yoJm Breckinridge^ 

Although John Breckinridge was thus, from the 
very beginning of his residence in Kentucky, con- 
nected with politics, it was not until December, 
1795, ^^^ ^^ held office, and the interval was full 
of activity in the prosecution of his profession. 
His practice was soon very large, both in civil and 
criminal law, but he turned his attention particu- 
larly to real-estate law. This was at once the most 
important and the most lucrative law business. 
The colony of Virginia under the crown had con- 
tained many large and unoccupied grants beyond 
the mountains. The State of Virginia early began 
to make others, and after the war immense tracts 
were given to the soldiery. These grants were 
made on worthless or mere paper surveys to a 
large extent, and late comers, finding this to be the 
case, and that it left many " gores " and corners 
unconveyed, even v/hile the neighboring lands 
were covered by several conveyances, obtained 
" blanquet " grants covering immense tracts, for 
the purpose of obtaining the unconveyed portions. 
In addition to the complications naturally incident 
to such a state of things, further vexations had 
arisen out of the conflicting claims of Virginia and 
Kentucky. Virginia, in the acts enabling Ken- 
tucky to erect herself into a State, had always con- 
ditioned it upon the recognition of her land grants 
and the protection of the holders of those lands 
who remained in the mother State. Bickerings 
arose on this score, as was natural, from the vexa- 
tious questions that sprang up. Mr. Breckinridge 
bent his energies to thrid the mazes of this tangle, 



The Mover of the Resolutions, 6 1 

and with distinguished success. All but the most 
acute minds found themselves hopelessly at fault 
before they had progressed far, and the few who 
succeeded were consequently rewarded by a large 
practice. Mr. Breckinridge's reputation in this 
department penetrated to the Virginia capital, and 
he was asked to take charge of the claims of that 
State. But the retainer reached him just after he 
had accepted from Governor Shelby the post of 
Attorney-General of Kentucky, and he was forced 
to decline the flattering offer. 

The election of a governor to succeed Governor 
Shelby took place on the 17th day of May, 1796. 
Under the old first constitution, then in force, this 
was by electors, after the manner of the Federal 
Constitution. There were properly fifty-seven 
members of the electoral college, but only fifty- 
three voted on the day appointed by law. The 
vote stood : For Benjamin Logan, 21 ; for James 
Garrard, 17 ; for Thomas Todd, 14 ; for John 
Brown, i. The electors proceeded to another bal- 
lot, assuming that there was no election and that a 
majority vote was necessary to a choice. Todd 
and Brown were summarily dropped, and Garrard 
receiving a majority was declared elected. Ben- 
jamin Logan appealed to Mr. Breckinridge, as 
Attorney-General, for his construction of the con- 
stitution upon the point. He declined to answ^er 
as Attorney-General, thinking it beyond the scope 
of his office, but prepared for him an able and 
elaborate opinion as a lawyer, which was published 
in the Lexington, Kentucky, Gazette for May 28th, 



62 yohn Breckinridge y 

and led to a sharp controversy. Mr. Breckinridge 
thought that the electors had plainly exceeded 
their powers ; that under the constitution Logan 
was elected, and that even if Logan was not elected 
that Garrard was certainly not elected, as the article 
of the constitution having been modelled on the 
national Constitution the same procedure would 
be properly applicable if any, although the Ken- 
tucky article omitted the provision for a reference 
to the house except in case of a tie, seeming to 
imply a plurality election. Logan appealed to the 
senate, by the law made arbiter of gubernatorial 
contests, but after a sharp fight the senate dodged 
the matter by declaring the law which gave them 
jurisdiction unconstitutional, and Logan's case 
went by default. But Mr. Breckinridge's argument 
v/as never refuted. 

Governor Garrard was installed on the ist of 
June, 1796, and in December of that year Mr. 
Breckinridge resigned his office. During his in- 
cumbency one thing had been brought home to 
him with great force. The Kentucky Criminal 
Code then in use prescribed the death penalty in 
no less than one hundred and sixty cases, extend- 
ing it to some of the most trivial offences. The 
other penalties it prescribed were equally severe. 
To his broad and humane mind such a code was 
barbarous and a blot upon the State ; but his judg- 
ment condemned it even more, on the ground that 
its very severity was an effectual barrier to its 
application, since juries shrank from convicting 
criminals where the punishment was so dispropor- 



The Mover of the Resolutions, 63 

tionate to the offence. A vacancy occurring in the 
legislative representation from his county he was 
elected to fill out the term with the avowed purpose 
of carrying through a thorough revision of the code. 
He took his seat in December, 1797, and at once 
addressed himself to this self-imposed task. The 
bill embodying the desired reforms was passed in 
the following February, and the death penalty was 
abolished for all offences with the single exception 
of murder in the first degree, and a code efficient 
and yet humane was secured. 

Thus began the year 1798, a year destined to be 
of the greatest influence upon his rising fortunes, 
and filled to overflowing with ceaseless and untiring 
labors. It was not till past mid-summer that the 
great questions of the year arose. The first note 
of resistance to the alien and sedition laws called 
him to the front, when, side by side with George 
Nicholas, he began the work of refuting their doc- 
trines, breaking their force, and securing their re- 
peal. Active as was his great friend, the leading 
part was by general consent conceded to Mr. 
Breckinridge, and with untiring industry and 
broad statesmanship he gained the best opinion 
of the leading men in Virginia and Kentucky as to 
the wisest course to pursue, and introduced the re- 
sults of his labors into the House of Representatives 
in the form of the famous Resolutions of 1798. 
These resolutions meeting with universal applause 
throughout the State, greatly increased his popu- 
larity in his own State and with the Republican 
statesmen throughout the country. His future 



64 yoh7i Breckinridgey 

preferment now seemed secure, and thenceforth 
his rise was rapid. He strenuously opposed the 
means used to bring about the second constitu- 
tional convention of 1799, but when that conven- 
tion became a settled fact, he accepted a place in 
it, and was so active that it has been said that the 
constitution then produced was more the work of 
his hand than of any other man's. He was elected 
to the legislatures of 1799 ^^^ 1800, and by both 
of them he was chosen Speaker. In the former he 
further distinguished himself by the resolutions of 
1799, and in the latter the promise of six years be- 
fore was fulfilled, and he was elected to the Senate 
of the United States, to succeed his old competitor, 
Humphrey Marshall. He was now just forty years 
of age, and had been in politics twenty years, dur- 
ing which time he had surely and steadily risen in 
the eyes of the people with an almost unbroken 
career of success. 

Mr. Breckinridge took his seat in the Senate 
upon the inauguration of his old chief, Mr. Jeffer- 
son, in March, 1801. He had set out from Ken- 
tucky taking his whole family with him, but was 
advised in Virginia to leave them with his relatives 
in that State, as the much-talked-of " Federal 
town " of Washington had very ill accommodation 
to offer the great throng of people crowding thither. 
He followed this advice, and upon arriving in the 
town, if it can be dignified with such a name, found 
it difficult to obtain even a lodging for himself. 
The new President and the new Congress were 
alike Republican, the Senate for the first time, and 



The Mover of the Resolutions, 65 

the era of Republican simplicity, which the Presi- 
dent introduced by riding horseback to his inaugu- 
ration and on dismounting tying his democratic 
steed to the fence, was continued by a close atten- 
tion to business. The " midnight appointments " 
first fell under the President's hand, and in close 
connection therewith a bill to repeal the judiciary 
act of the last session was to be introduced. The 
reconstitution of the houses consequent upon the 
new administration and the formation of the Cabi- 
net left the now dominant party without leaders, 
and the President's influence was such that whom- 
soever he should select would be regarded as the 
leaders of the administration in the tw^o branches of 
the Congress. 

Although Mr. Breckinridge now made his first 
appearance in national affairs, he was intrusted 
by Mr. Jefferson with the business of introducing 
the bill to repeal the judiciary act. This extra- 
ordinary exhibition of confidence and esteem 
placed Mr. Breckinridge in the front rank of 
statesmen, and he so well justified the trust by his 
conduct of this matter, and in his subsequent 
career in the Senate, that his comrades readily 
acquiesced in the estimate of the President. The 
repeal of the judiciary act having been carried 
through, Mr. Breckinridge was not called upon to 
act in any matter of first-class importance until the 
Louisiana purchase came up. As a Kentuckian he 
naturally was prompt to second a measure which 
secured finally and completely the darling object 
of his State. In every way he lent his aid and 



66 yohn Breckinridge, 

advice to bring the matter to a happy issue. None 
of the doubts and difficulties that for a time stood 
in the way of the President affected him. The 
Mississippi traffic was essential, it was then be- 
lieved, to the life and development of the States 
beyond the mountains, and so long as the mouth 
of that river was in the hands of a foreign power, 
there was no certainty that the river would remain 
open. And far-sighted statesmen, even in that 
early day, had begun to catch some glimpse of the 
growth of the West through the vistas of the future, 
and thought that the western bank of the great river 
ought to be secured at any price. When the pur- 
chase had been pushed through on the responsi- 
bility of the President, he became very anxious to 
know how Congress and the people would regard 
his action. Congress was summoned to meet early 
in the autumn. In the meantime he wrote to Mr. 
Breckinridge, urging him to do what he could 
towards the desired end, and particularly to impress 
upon the western members, who could be relied on 
to support the administration, the necessity of 
being on hand promptly at the beginning of the 
session. 

Mr. Jefferson was very doubtful whether he had 
any warrant in the Constitution for the step he had 
taken. After his usual manner in such a dilemma 
he wrote to a number of his confreres and asked 
their advice. He finally came to the conclusion 
that an amendment to the Constitution was neces- 
sary to make the acquisition of territory good, and 
expressed a desire to throw himself upon the tender 



The Mover of the Resolutions, 67 

mercies of posterity to justify what he believed to 
have been a breach, at least of the letter, of the law. 
Accordingly he sent draughts of an amendment, 
somewhat differently worded in the several cases, to 
a number of gentlemen, among whom was Mr. Breck- 
inridge,^ asking their opinion of it. Mr. Breckin- 
ridge was not to be brought to the view of his 
leader, and declined to introduce the bill authoriz- 
ing the submission of such an amendment to the 
people. After a good deal of doubt and hesitancy 
on one side, and great firmness and decision on the 
other, the matter was finally dropped. No amend- 
ment was offered, and the acquisition of Louisiana 
passed into a great precedent. Had Mr. Jefferson 
prevailed and Mr. Breckinridge been overruled, 
the barrier to the annexation of Texas, and the 
purchase of the Floridas and Alaska might well 
have become insuperable. 

When Congress assembled, the first question after 
the Senate had ratified the treaty, was to decide 
what steps were necessary to assert the ownership 
of Louisiana. Mr. Jefferson came to the conclusion 
that the warrant of Congress was prerequisite to 
any occupation of the newly-acquired territory, and 
Mr. Gallatin, acting for him, wrote to Mr. Breckin- 
ridge : " I send in the shape of a bill the substance 
of which [what ?] the President seems to think 
necessary in order to authorize him to occupy and 
temporarily govern Louisiana. Will you consult 
with your friends and decide whether authority be 
necessary, and if so what form should be given it." 

^ Vide letters of Jefferson to Levi Lincoln and Madison. 



68 yohn Breckinridge, 

Upon this point there was no difference of opinion, 
and the authority was given to the President in an 
act passed early in the session. 

The energy, activity and decision which Mr. 
Breckinridge displayed in this connection, raised 
him in the estimation even of those with whom he 
had long been on intimate terms, and when the next 
election drew near he was mentioned very promi- 
nently for the Republican nomination for the Vice- 
Presidency. He never lacked warm and staunch 
friends, and, as soon as his name was mentioned, 
they came forward and pressed his claims with 
convincing effect. Mr. Jefferson, with an honora- 
ble desire to bind all sections firmly to his growing 
party, was very unwilling that the candidates for 
the two principal offices in the country should 
come from the States of Virginia and Kentucky, 
so recently one and still closely knit together. It 
did not need his eminent foresight to see that 
jealousy would be called forth by such action, and 
that such jealousy would at once be almost certainly 
fatal to the party, and not without some foundation. 
His friends were quick to urge Mr, Breckinridge 
to forbid that his name should be used, and the 
distinguished Allan McGruder wrote on Mr. Jef- 
ferson's behalf and laid the matter plainly before 
him. Mr. Breckinridge, who lost no opportunity 
of proving his love and loyalty towards his great 
leader, readily listened to these considerations and 
did not permit his name to be presented to the 
caucus which made the nominations. Neverthe- 
less, quite a number of votes were cast for him. 



The Mover of the Resolutions, 69 

Levi Lincoln resigned the position of Attorney- 
General at the close of Jefferson's first term, and 
Smith of Maryland, then Secretary of the Navy, 
was appointed to succeed him, in order that Jacob 
Crowninshield might be given the Navy Depart- 
ment ; but the latter preferred to represent Massa- 
chusetts in the House of Representatives and Smith 
was shifted back to his old post and the Attorney- 
Generalship was again left vacant, whereupon the 
President wrote to Mr. Breckinridge, under date of 
August 1805 : " The office of Attorney-General for 
the United States being not yet permanently filled, 
I have an opportunity of proposing it for your 
acceptance. Both its duties and its emoluments 
are too well known to you to render it necessary 
for me to particularize them. I shall with the 
greater pleasure learn that you accede to my wishes 
in availing the public of your services, as your 
geographical position will enable you to bring into 
our counsels a knowledge of the Western interests 
and circumstances, for which we are often at a 
loss and sometimes fail in our desire to promote 
them. Hoping that in your patriotism, and perhaps 
in other circumstances, you will find motives suffi- 
cient to induce you to become a part of our admin- 
istration, I will pray you, as soon as you shall have 
been able to form a decision, to be so good as to 
communicate it to me." Despite the kindly urgency 
of this letter, Mr. Breckinridge held back. His 
present position v/as congenial and he was assured 
of a continuance in it, and although it could not 
but be a pleasure to be associated with such men 



70 yohn Bi^eckinridgCy 

as formed the Cabinet, he yet seriously doubted if 
it was not better to continue in the Senate. It was 
not until some further pressure had been brought 
to bear upon him that, in December, 1805, he 
accepted the Attorney-Generalship. 

His brief life was now nearly spent. A single 
year in the Cabinet completed his career, and after 
a painful and protracted illness he died at his home 
at Cabell's Dale, on the i4tliday of December, 1806, 
aged forty-six years and twelve days. His death 
caused deep and widespread regret ; for he hadj 
during his brief experience of national politics, 
achieved a wide and growing fame, and had identi- 
fied himself so closely with the heads of his party^ 
that the eyes of many already turned to him as to 
one who was some day to attain even the chiefest 
places. No better instance of this feeling can be 
quoted, nor can the permanence of the impression 
have a better illustration than Albert Gallatin's 
declaration made many years afterw^ards in a letter 
to a friend. Said he : " During the twelve years I 
was in the Treasury I was anxiously looking for 
some man that could fill my place there and in the 
general direction of the national concerns ; for one, 
indeed, that could replace Mr. Jefferson, Mr. Madi- 
son, and myself. Breckinridge, of Kentucky, only 
appeared and died ; the eccentricities of John 
Randolph soon destroyed his influence.** 

In personal appearance Mr. Breckinridge was 
tall and striking. He was over six feet in height, 
of a spare and muscular build, showing in the grace 
and strength of his figure the effects of the training 



The Mover of the Resolutions. 71 

he received in the wilderness in his youth. His 
hair was a rich chestnut-brown, inclining towards 
auburn, and his eyes of that peculiar shade of 
brown that is frequently found with such hair, and 
variously described as hazel, reddish-brown, or 
chestnut. His address was always easy and digni- 
fied, with a touch of gravity, which, in conjunction 
with his habitual reserve, seemed sometimes to 
deepen into sternness. But this was only appar- 
ently true, for his thoughtful exterior covered, but 
could not long conceal, the humane and gentle 
heart that governed his every action. He was one 
of those few men whom every one seems to love, 
and to whose name when upon the lips of his 
friends or kinsmen the adjective " beloved " seemed 
to belong of right. The terms in which his friends 
wrote to him, the expressions of delight at his ex- 
pected return, of pain at his departure, would seem 
to be more appropriate to the letters of a lover to 
his mistress than to the correspondence between 
men schooled in the adversity of that period. John 
Nicholas, for instance, writes to him just after his 
return to Kentucky from a visit to Virginia, that 
the pain of parting had been greater than he could 
bear ; that though he had urged him to come to 
visit him, the joy of that meeting had been swal- 
lowed up in the later sorrow, and that he was con- 
strained to pray him to come no more to Virginia 
unless it was to remain. This is not a solitary in- 
stance, but one out of many, and the writers were 
not men to affect a sentiment which they did 
not feel, but rather that type which, though slow 



72 yohn Breckinridge y 

to melt into feeling, when once they yield to the 
dictates of their hearts, surprise by the depth, even 
while they charm by the genuineness, of their emo- 
tion. His wife, who by her sprightly and ready 
wit and sparkling conversation had in his lifetime 
been such a contrast to him, at his death was pros- 
trated by her grief, and by excess of weeping com- 
pletely destroyed her eyesight, which had not been 
strong before, and in a life prolonged more than 
fifty years she cherished in darkness the memory 
of him who had been in life the very " light of her 
eyes," and was at length laid to sleep in the grave 
where his dust had lain for half a century. 

Many years ago a eulogy was pronounced upon 
John Breckinridge, which, though pitched in too 
oratorical a key to be quoted at length in this 
place, contains a passage descriptive oi his personal 
character which is at once too vigorous and too 
eloquent to be passed over. It is as follows : 

" Of the private life of this man, I have heard a 
character still more remarkable. Simple in his 
manners, grave and lofty in his carriage, self-denied 
in his personal habits, and a stranger to the 
common wants and infirmities of man, no efforts 
were too great, no labors too immense, no vigils too 
protracted, no dangers too imminent, no difficulties 
too insurmountable for his great, concentrated, 
indomitable energies. And yet this firm and earn- 
est spirit, and this vigor almost austere, were tem- 
pered by a gentleness towards those he loved, so 
tender that the devotion of his friends knew no 
bounds ; and directed by a frankness and generos- 
ity towards all men, so striking and absolute, that 
even those he could not trust trusted him." 



The Mover of the Resolutions. 73 

One of his sons, Robert Jefferson Breckinridge, 
who, at his death, was a child of six years old, has 
left it on record that when he had grown to man- 
hood he sought to learn from the old men who 
knew him well, something of the father that he 
could, by the utmost stretch of his memory, but 
just recall, and that in speaking of him their eyes 
would fill with tears. 

Such was the man upon whom the chief 
part in the adoption of the Kentucky Resolu- 
tions devolved. In all respects he was worthy 
of the places he was called to occupy, and the 
measures he advocated, and even higher praise 
may be contained in the further dictum, which 
is no less true, that he never held an office nor 
advocated a measure which was not worthy of him. 

His claims to be remembered for what he was 
and did are great and just, and he is, moreover, 
worthy of remembrance as the founder of a family 
which, for achievement, force of intellect, and per- 
sistence is comparable to the best of American 
stocks. His sons, Joseph Cabell Breckinridge, John 
Breckinridge, Robert Jefferson Breckinridge, and 
William Lewis Breckinridge, were all men of mark 
either in politics or the Church ; his grandson, John 
Cabell Breckinridge, holds a memorable place in 
American history ; while a number of others of his 
descendants on the bench, at the bar, in Congress, 
in the ministry, and the army, preserve and perpet- 
uate the ability and fame of the name, which was 
honorable when he received it, and to which he 
and his brothers gave a permanent lustre. 



CHAPTER IV. 

THE RESOLUTIONS. 

The Kentucky legislature assembled on the 7th 
day of November, 1798. As soon as an organiza- 
tion had been effected, the governor, James Gar- 
rard, appeared in person and made the opening 
address, according to the custom of that day. He 
called attention to the various questions that de- 
manded legislation, and finally, after a re'sufne of 
the political situation and the prominent position 
occupied therein by the late legislation in Congress, 
especially as to aliens and sedition, he concluded 
with the following recommendation : 

" Permit me then to suggest to you the expedi- 
ency of your declaring fully, in behalf of yourselves 
and of the respectable people whom you represent, 
your firm attachment to the Federal Constitution, 
and your determination to support the general gov- 
ernment in every measure which is authorized by 
the commission under which it acts, whilst at the 
same time, by entering your protest against all 
unconstitutional laws and impolitic proceedings — 
tempering the bold firmness of freemen with that 
moderation which indicates a love of tranquillity, — 
you will raise high the character of your country in 

74 



The Resolutions, 75 

the esteem of those whose good opinion you should 
be solicitous of acquiring, and convince the friends 
of liberty and of man that whatever may be the fate 
of their cause in other countries, Kentucky, remote 
from the contaminating influence of European 
politics, is steady to the principles of pure republi- 
canism, and will ever be the asylum of her perse- 
cuted votaries."^ 

A committee of three was appointed to consider 
this address and report a reply back to the House, 
Mr. John Breckinridge, of Fayette County, was one 
of this committee, and he proceeded at once to 
give notice that he would, on " to-morrow, move the 
House to go into a committee of the whole on the 
state of the commonwealth on that part of the gov- 
ernor's address which relates to certain unconstitu- 
tional laws passed at the late session of Congress, 
and that he would then move certain resolutions on 
that subject."^ 

In accordance with this notice, the House re- 
solved itself into a committee of the whole on the 
8th, with Mr. Caldwell in the chair, and a con- 
catenation of resolutions were introduced by Mr. 
Breckinridge as follows : 

I. Resolved^ That the several states composing the 
United States of America, are not united on the 
principle of unlimited submission to their General 
Government ; but that by compact under the style 

^ The (Frankfort, Kentucky,) Palladium, November 13, 
1798. This passage, alike remarkable as being a single sen- 
tence and for the number of its subordinate clauses, its 
punctuation, and its diction, is a fair sample of the whole 
address. 2 Jc^^jn. 



76 The Resolutions. 

and title of a Constitution for the United States and 
of amendments thereto, they constituted a General 
Government for special purposes, delegated to that 
Government certain definite powers, reserving each 
state to itself, the residuary mass of right to their 
own self Government ; and that whensoever the 
General Government assumes undelegated powers, 
its acts are unauthoritative, void, and of no force : 
That to this compact each state acceded as a state, 
and is an integral party, its co-states forming as to 
itself, the other party : That the Government created 
by this compact was not made the^exclusive'bflinal 
judge of the extent of the powers delegated to 
itself ; since that would have made its discretion, and 
not the constitution, the measure of its powers ; but 
that as in all other cases of compact among parties 
having no common Judge, each party has an equal 
right to judge for itself, as well of infractions as of 
the mode and measure of redress. 

II. Resolved^ That the Constitution of the United 
States having delegated to Congress a power to 
punish treason, counterfeiting the securities and 
current coin of the United States, piracies and 
felonies committed on the High Seas, and offences 
against the laws of nations, and no other crimes 
whatever, and it being true as a general principle, 
and one of the amendments to the Constitution hav- 
ing also declared, " that the powers not delegated 
to the United States by the Constitution, nor pro- 
hibited by it to the states, are reserved to the states 
respectively, or to the people," therefore also the 
same act of Congress, passed on the 14th day of 



The Resolution^ A :(ji>^'^ yj 

,* . J' 

July, 1798, and entitled " An act in addition to the .1 

a^ entitled an act for the punishment of certain \\V * 
crimes against the United States ; " as also the act ^'f ' 
passed by them on the 27th day of June, 1798, en-' 
titled " An act to punish frauds committed on the 
Bank of the United States " (and all other their 
acts which assume to create, define, or punish crimes 
other than those enumerated in the constitution) 
are altogether void and of no^^rce, and that the 
power to create, define, and punish such other 
crimes is_reseryed, and of right appertains solely 
and exclusively to Jhe respective states, each within 
itso^a ^--Territo ry . 

III. Resolved, That it is true as a general principle, 
and is also expressly declared by one of the amend- 
ments to the Constitution, that " the powers not 
delegated to the United States by the Constitution, 
nor prohibited by it to the states, are reserved to the 
states respectively or to the people ; " and that no 
power over the freedom of religion, freedom of 
speech, or freedom of the press, being delegated to ^^ 
the United States by the Constitution, nor prohibited 
by it to the states, all lawful powers respecting the 
same did of right remain, and were reserved to the 
states, or to the people : That thus was manifested 
their determination to retain to themselves the right 
of judging how far the licentiousness of speech and 
of the press may be abridgedVvithout lessening their 
useful freedom, and how far those abuses which 
cannot be separated from their use, should be toler- 
ated rather than the use be destroyed ; and thus 
also they guarded against all abridgment by the 



■k 



■? 



\ 



78 The Resolutions, 

United States of the freedom of religious opinions 
and exercises, and retained to themselves the right 
of protecting the same, as this state by a Law passed 
on the general demand of its Citizens, had already 
protected them from all Human restraint or inter- 
ference : And that in addition to this general 
principle and express declaration, another and 
more special provision has been made by one of 
the amendments to the Constitution which expressly 
declares, that " Congress shall make no law respect- 
\ing an Establishment of religion, or prohibiting the 
free exercise thereof, or abridging the freedom of 
speech, or of the press," thereby guarding in the 
same sentence, and under the same words, the free- 
dom of religion, of speech, and of the press, inso- 
much, that whatever violates either, throws down 
the sanctuary which covers the others, and that 
libels, falsehoods, and defamation, equally with 
heresy and false religion, are withheld from the 
cognizance of federal tribunals. (_ That therefore 
the act of the Congress of the United States passed 
on the 14th day of July, 1798, entitled '' An act in 
addition to the act for the punishment of certain 
crimes against the United States," which does 
abridge the freedom of the press, is not law, but is 
altogether void and of no effect. 

IV. Resolved^ That alien friends are under the 
jurisdiction and protection of the laws of the state 
wherein they are ; that no power over them has 
been delegated to the United States, nor prohibited 
to the individual states distinct from their power 
over citizens ; and it being true as a general princi- 



The Resolutions. 79 

pie, and one of the amendments to the Constitution 
having also declared, that " the powers not dele- 
gated to the United States by the Constitution nor 
prohibited by it to the states are reserved to the 
states respectively or to the people," the act of the 
Congress of the United States passed on the 22d 
day of June, 1798, entitled "/An act concerning 
aliens," which assumes power over alien friends not 
delegated by the Constitution, is not law, but is al- 
together void and of no force. ) 

V. Resolved, That in addition to the general prin- 
ciple as well as the express declaration, that powers 
not delegated are reserved, another and more spe- 
cial provision inserted in the Constitution from 
abundant caution has declared, " that t he m igration 
or importation of such persons as ^ny^of the states 
now existin^shaU think proper to admit, shall not 
be prohibited by the Congress prior to the year 
1808." That this Commonwealth does admit the 
migration of alien friends described as the subject 
of the said act concerning aliens ; that a provision 
against prohibiting their m^igration, is a provision 
against all acts equivalent thereto, or it would be 
nugatory ; that to remove them jvvhen jnigrated is 
equivalen t to a prohibition of their mig^ration, and 
is therefore contrary to the said provision of the 
Constitution, and void. 

VI. Resolvedy That the imprisonment of a person 
under the protection of the laws of this Common- 
wealth on his failure to obey the simple order of the 
President to depart out of the United States, as is 
undertaken by the said act entitled " An act con- 



8o The Resolutions, 

cerning Aliens," is contrary to the Constitution, 
one amendment to which has provided, that " no 
person shall be deprived of liberty without due 
process of law," and that another having provided 
" that in all criminal prosecutions, the accused shall 
enjoy the right to a public trial by an impartial 
jury, to be informed of the nature and cause of the 
accusation, to be confronted with the witnesses 
against him, to have compulsory process for obtain- 
ing witnesses in his favor, and to have the assist- 
ance of counsel for his defence," the same act un- 
dertaking to authorize the President to remove a 
person out of the United States who is under the 
protection of the law, on his own suspicion, with- 
out accusation, without jury, without public trial, 
without confrontation of the witnesses against him, 
without having witnesses in his favor, without de- 
fence, without counsel, is contrary to these provi- 
sions also of the Constitution, is therefore not law 
but utterly void and of no force. 

That transferring the power of judging any per- 
son who is under the protection of the laws, from 
the Courts to the President of the United States, as 
is undertaken by the same act concerning Aliens, is 
against the article of the Constitution which pro- 
vides, that " the judicial power of the United States 
shall be vested in courts, the Judges of which shall 
hold their offices during good behavior," and that 
the said act is void for that reason also ; and it is 
further to be noted that this transfer of Judiciary 
power is to that magistrate of the General Govern- 
ment who already possesses all the Executive, 



The Resolutions, 8 1 

and a qualified negative in all the Legislative 
powers. 

VII. Resolved^ That the construction applied by 
the General Government (as is evinced by sundry of 
their proceedings) to those parts of the Constitution 
of the United States which delegate to Congress a 
power to lay and collect taxes, duties, imposts, and 
excises ; to pay the debts, and provide for the com- 
mon defence, and general welfare of the United 
States, and to make all laws which shall be neces- 
sary and proper for carrying into execution the 
powers vested by the Constitution in the Govern- 
ment of the United States, or any department 
thereof, goes to the destruction of all the limits 
prescribed to their power by the Constitution — That 
w^rds meantjby- that instrument to be subsidiary 
only to the execution of the limited powers, ought 
not to be so construed as themselves to give unlim- 
ited powers, nor a part so to be taken, as to destroy 
the whole residue of the instrument : That the pro- 
ceedings of the General Government under color of 
these articles, will be a fit and necessary subject for 
revisal and correction at a time of greater tranquil- 
lity, while those specified in the preceding resolu- 
tions call for immediate redress. 

VIII. Resolved^ That the preceding Resolutions 
be transmitted to the Senators and Representatives 
in Congress from this Commonwealth, who are 
hereby enjoined to present the same to their respec- 
tive Houses, and to use their best endeavors to 
procure at the next /session of Congress, a repeal of 
the aforesaid unconstitutional and obnoxious acts. 



82 The Resolutions, 

IX. Resolved lastly, That the Governor of this 
Commonwealth be, and is hereby authorized and re- 
quested to communicate the preceding Resolutions 
to the Legislatures of the several States, to assure 
them that this Commonwealth considers union for 
specified National purposes, and particularly for 
those specified in their late Federal Compact, to be 
friendly to the peace, happiness, and prosperity of 
all the states : that faithful to that compact, ac- 
cording to the plain intent and meaning in which it 
was understood and acceded to by the several 
parties, it is sincerely anxious for its preservation : 
that it does also believe, that to take from the states 
all the powers of self government, and transfer them 
to a general and consolidated Government, without 
regard to the special delegations and reservations 
solemnly agreed to in that compact, is not for the 
peace, happiness, or prosperity of these states : 
And that, therefore, this Commonwealth is deter- 
mined, as it doubts not its Co-states are, tamely to 
submit to undelegated and consequently unlimited 
powers in no man or body of men on earth : that 
if the acts before specified should stand, these con- 
clusions would flow from them ; that the General 
Government may place any act they think proper on 
the list of crimes and punish it themselves, whether 
enumerated or not enumerated by the Constitution 
as cognizable by them : that they may transfer its 
cognizance to the President or any other person 
who may himself be the accuser, counsel, judge, 
and jury, whose suspicions may be the evidence, 
his order the sentence, his ofificer the executioner, 



The Resolutions. Z^^ 

and his breast the sole record of the transaction : 
that a very numerous and valuable description of 
the inhabitants of these states, being by this 
precedent reduced as outlaws to the absolute 
dominion of one man and the barrier of the 
Constitution thus swept away from us all, no 
rampart now remains against the passions and 
the power of a majority of Congress, to protect 
from a like exportation or other more grievous 
punishment the minority of the same body, the 
Legislatures, Judges, Governors, and Counsellors 
of the states, nor their other peaceable inhabitants 
who may venture to reclaim the constitutional 
rights and liberties of the states and people, or 
who for other causes, good or bad, may be obnox- 
ious to the views or marked by the suspicions of 
the President, or be thought dangerous to his or 
their elections or other interests public or per- 
sonal : that the friendless alien has indeed been 
selected as the safest subject of a first experiment : 
but the citizen will soon follow, or rather has al- 
ready followed ; for, already has a Sedition Act 
marked him as its prey : that these and successive 
acts of the same character, unless arrested on the 
threshold, may tend to drive these states into revo- 
lution and blood, and will furnish new calumnies 
against Republican Governments, and new pretexts 
for those who wish it to be believed, that man can- 
not be governed but by a rod of iron : that it 
would be a dangerous delusion were a confidence 
in the men of our choice to silence our fears for 
the safety of our rights : that confidence is every- 



84 T^h.e Resolutions. 

where the parent of despotism : free government 
is founded in jealousy and not in confidence ; 
it is jealousy and not confidence which prescribes 
limited'^Constitutions to bind down those whom we 
are obliged to trust with power : that our Constitu- 
tion has accordingly fixed the limits to which and 
no further our confidence may go ; and let the 
honest advocate of confidence read the Alien and 
Sedition Acts, and say if the Constitution has not 
been wise in fixing limits to the Government it cre- 
ated, and whether we should be wise in destroying 
those limits ? Let him say what the Government is 
if it be not a tyranny, which the men of our choice 
have conferred on the President, and the President 
of our choice has assented to and accepted over 
the friendly strangers, to whom the mild spirit of 
our Country and its laws had pledged hospitality 
and protection : that the men of our choice have 
more respected the bare suspicions of the President 
than the solid rights of innocence, the claims of 
justification, the sacred force of truth, and the 
forms and substance of law and justice. In 
questions of power then let no more be heard of 
^nhd^ehce in man, but bind him down from mis;^ 
chief by the chain of the Constitution. That this 
Commonwealth does therefore call on its Co-states 
for an expression of their sentiments on the acts 
concerning Aliens, and for the punishment of cer- 
tain crimes hereinbefore specified, plainly declar- 
ing whether these acts are or are not authorized 
by the Federal Compact ? And it doubts not that 
their sense will be so announced as to prove their 
attachment unaltered to limited Government, 



The Resolutions. 85 

whether general or particular, and that the rights 
and liberties of their Co-states will be exposed to 
no dangers by remaining embarked on a common 
bottom with their own : That they will concur with 
this Commonwealth in considering the said acts as 
so palpably against the Constitution as to amount 
to an undisguised declaration, that the Compact is 
not meant to be the measure of the powers of the 
General Government, but that it will proceed in the 
exercise over these states of all powers whatsoever : 
That they will view this as seizing the rights of the 
states and consolidating them in the hands of the 
General Government with a power assumed to bind 
the states (not merely in cases made federal) but in 
all cases whatsoever, by laws made, not with their 
consent, but by others against their consent : That 
this would be to surrender the form of Government 
we have chosen, and to live under one deriving its 
powers from its own will, and not from our au- 
thority ; and that the Co-states recurring to their 
natural right in cases not made federal, will concur 
in declaring these acts void and of no force, and 
will each unite with this Commonwealth in request- 
ing their repeal at the next session of Congress. 

Edmund Bullock, S. H. R. 

John Campbell, S. S. P. T. 

Passed the House of Representatives Nov. lO, 1798. 

Attest, Thomas Todd, C. H. R. 

IN SENATE, November 13, 1798, unanimously concurred in. 

Attest, B. Thurston, Clk. Sen., 

Approved Nov. 16, 1798. 

James Garrard, G. K. 
BY THE GOVERNOR, 

Harry Toulmin, 

Secretary of State. 



86 The Resolutions. 

These resolutions were under discussion Thurs- 
day, Friday, and Saturday, the 8th, 9th, and loth 
of November, and were reported to the House and 
adopted on the loth instant. They called forth 
very little debate ; but that debate was vigorous 
and distinctly upon the very points at issue. 
There was a rare unanimity in the House, so 
much so that the opposition was confined, so 
far as the whole series was concerned, to Mr. 
William Murray, of Franklin County. But he was 
a man of high powers, an able lawyer, a clear 
thinker, and a forcible debater. He grasped the 
salient points of the controversy with firmness, and 
if he did not succeed in convincing his audience, 
he anticipated the general arguments of the party 
to which he belonged for many years. His bias 
towards Federalism prevented him from attaining 
eminence. He was one of the number to whom 
the communications from the Spanish governor, in 
1793 and 1797, were said to have been submitted, 
and it has been charged that his opposition may 
have been dictated by a desire " to balance his as 
yet unpublished relation to that ' intrigue ; it cer- 
tainly was a favorable opportunity for him to purge 
himself of that iniquity." ' There is no just ground 
for such a suggestion. He was in all things a typi- 
cal Federalist both in profession and in habits of 
thought. It would have required a most facile and 
acute mind, indeed, to handle the arguments against 
i these resolutions with the vigor and ability which he 

^ - See " American Commonwealths." Kentucky. By N. S. 
Shaler, p. 141. 



The Resohdions, 87 

manifested had they sprung from any thing short of 
deep conviction. 

The speeches of Mr. Murray and Mr. Breckin- 
ridge are so important that a very full report of 
them is given entire. This report was made for the 
Frankfort Palladiu?n^ and published in that paper 
in its issues for the 13th and 20th of November, 
1798. 

Mr. Murray opened the debate. 

Mr. Murray observed that, having received a 
printed copy of them [the resolutions] but a short 
time before he came to the House, he was not pre- 
pared to come forward with such amendments as 
would render them more correspondent with his own 
ideas. He should therefore content himself with a 
few preliminary observations. Nothing had been 
said to show that resolutions similar to those which 
had been proposed were such as the House could with 
propriety adopt. No observations had been offered 
to prove that the case before them was a proper one 
for the House to act upon. He regretted the man- 
ner in which the subject had been taken up in the 
State of Kentucky. Parties had sometimes been 
said to be necessary to the existence and welfare of 
a republipan government. For his own part, he 
was of a different opinion. Parties occasion heat ; 
heat begets heat. The mind when heated is unfit 
for deliberation. It was manifested in the present 
instance. He was willing to admit that the meas- 
ures might have been impolitic which had been 
adopted by the ruling party in Congress ; but the 
opposite party had acted with still greater impolicy. 
They had not contented themselves with that cool, 
deliberate course of conduct which would have 
been most likely to insure success to their exer- 
tions, but at once, at the very outset of the business, 



88 The Resolutions, 

had recourse to the most violent, the most iregular 
modes of opposition. They had not merely at- 
tempted to show the impropriety of the laws which 
they complained of, and endeavor by peaceable re- 
monstrance to obtain redress, but had denied the 
authority of Congress to enact such laws. The 
legislature of Kentucky were now called upon to 
do what ? To stretch forth their hands to support 
the ark of the Constitution. Yet at the very mo- 
ment they are calling upon you to preserve the 
Constitution, at the very moment they are calling on 
you to declare what is and what is not the theory of 
your Constitution, are they not tempting you to 
violate the Constitution ; are they not calling upon 
you to exercise a power which never has been dele- 
gated to this body ? While exclaiming against usur- 
pation, will you yourselves become usurpers ? Be- 
cause the Constitution of the United States has been 
violated, will you violate your own Constitution ? 
Where is the clause which has given you the censor- 
ship ? Where is the clause which has authorized 
you to repeal or to declare void the laws of the 
United States ? 

If we have been elected by our fellow-citizens 
to watch over the interests of our commonwealth, 
shall w^e consume our time, shall we divert our at- 
tention from the objects for which we were specially 
sent here, in fabricating theories of government 
and pronouncing void the acts of Congress ? If we 
turn our attention to the Constitution of this State 
we shall find that it has delegated the several powers 
of government to three distinct branches : the ex- 
ecutive, the legislative, and the judiciary. 

Here Mr. Murray enumerated the several powers 
lodged with each. And where, says he, in this 
distribution does the power of censorship reside ? 
Does it belong to the Governor to pass a judgment 
on the proceedings of Congress ? No ! the objects 
of his authority are to appoint State officers, to ex- 



The Resolutions, 89 

amine State acts, to superintend the execution of 
State laws, and to recommend to our attention ob- 
jects of State policy. Does the censorship then 
reside in this House ? No ; for it is " the legislative 
power of this commonwealth " only that is vested 
in the General Assembly. Its power of impeach- 
ment has connection merely with our State officers. 
Nor does it belong to the judiciary ; for there is a 
judiciary department established by the Constitu- 
tion of the United States. It belongs then to the 
people at large. Let me not be told that we, the 
members of this House, are a part of the people, 
and have, as such, a right to take cognizance of 
Federal transactions. 

We are sent here, not to act as so many indi- 
vidual citizens, but as a constituted body, and it is 
in that capacity only we have a right to act within 
these walls. Our proceedings are the proceedings 
of the legislature of Kentucky only ; nor can any 
thing which we think, or say, or do, as individuals, 
obtain a place in our journals. 

What then follows ? It certainly follows that 
instead of consuming our time on objects to which 
our powers do not extend, we ought to be bending 
our attention to the objects for which our constit- 
uents sent us ; we ought to be providing for the 
welfare of the commonwealth of Kentucky. The 
power which we possess as members of this legis- 
lature is as much derivati^^e as the pov/er of Con- 
gress ; we are as much restrained by constitutional 
sanctions, we are as much confined within particular 
bounds. But are we not going beyond those 
bounds ? Are we not, in taking up these resolu- 
tions, going beyond the bounds of State legislation ? 

The Constitution of the United States was ren- 
dered necessary by a want of energy in the former 
confederation. Under that confederation credit 
had expired. The United States were the contempt 
of foreign nations ; money was necessary for carry- 



go The Resolutions. 

ing on the government ; but money could not be 
raised by means of taxes, nor borrowed on the faith 
of them. Under these circumstances we were 
obliged to form a closed union, and the present 
Constitution of the United States attained exist- 
ence. This Constitution, he showed, was not 
merely a covenant between integral States, but a 
compact between the several individuals composing 
those States. Accordingly the Constitution com- 
mences with this form of expression : " We, the 
people of the United States," not we, the thirteen 
States of America. 

In this Constitution of the United States, as in 
the several State constitutions,the powers of govern- 
ment are distributed into three departments. Con- 
gress, like the State assemblies, is possessed of legis- 
lative authority. The powers and duties of the 
President of the United States resemble those of 
the several State governors ; and to the judiciary, 
and the judiciary alone, it belongs to declare what 
acts of the legislature are law, and what are not 
law. And to their honor be it said that they have, 
with an independence becoming their character, 
declared an act passed by Congress no law. He 
referred to an act authorizing the judges of the cir- 
cuit courts to certify the persons entitled to pen- 
sions, allowing an appeal, however, to some branch 
of the executive, or probably to the heads of de- 
partments. 

On this law it was held that the authority of 
courts was purely a judicial authority, and no other ; 
and, when exercising this judicial authority, no ap- 
peal could constitutionally lie to an executive of- 
ficer. 

The Constitution of the United States has reserved 
certain powers to the people and to the States 
respectively. 

But does that article, or does any other article 
give to the State legislatures any authority to cen- 



The Resohitions. 91 

sure either the executive or the legislative depart- 
ments of the general government ? Is there any 
clause either in the Federal or in the State consti- 
tution which delegates the power reserved by the 
people to their State legislature ? 

No ! it is the people only that have a right to in- 
quire whether Congress hath exceeded its powers; 
it is the people only that have a right to appeal for 
redress. 

To the General Assembly is delegated merely 
State powers. The authority to determine that a 
law is void is lodged with the judiciary. 

These being his sentiments, he considered it as 
altogether improper for him in the present stage of 
the business to engage in a discussion of the resolu- 
tions which had been referred to the committee. 
He trusted that the committee would determine 
that it was entirely out of their province to enter 
upon the consideration of the validity of laws of the 
Union; should they, however, declare their opinion 
that it was their duty to take up the subject, it 
would then be time enough for him to offer his rea- 
sons for rejecting the resolutions. 

Mr. Murray having concluded his remarks Mr. 
Breckinridge rose to reply. 

Mr. Breckinridge observed that if the gentleman 
who had just sat down were right in every part of 
the political creed which he had been making to 
the committee, he had himself been all his life en- 
veloped in a cloud of political darkness. 

Though that gentleman might regard the State 
legislature as so contemptible a body that they had 
nothing to do but sit in that House and silently view 
the depredations committed on their rights, he had 
a very different opinion of their character and au- 
thority, and for his own part held high his impor- 
tance as a representative of the people of Kentucky, 



92 The Resolutions. 

The observations, however, of the gentleman, 
though new and unexpected, he would endeavor to 
answer. It had been admitted that the laws which 
were the subject of complaint were impolitic. They 
could then take notice of impolitic acts ; but if im- 
politic acts may be censured, those which are un- 
constitutional may certainly, a fortiori^ not only be 
censured, but may be declared void. 

It had likewise been admitted that the powers of 
the General Government are altogether derivative ; 
that they are derived either from the people or 
from the State legislatures. The doctrine, so far, 
is good ; but I ask, said he, are not those deriva- 
tive powers enumerated and limited to certain 
specified purposes ? and is not the residuary mass 
retained somewhere ? Where then is it retained ? 
Either in the State legislatures or in the people. 

The State Governments can not entrench on the 
powers delegated to the General Government ; and 
the General Government can not entrench on those 
which are retained. If, then, the General Govern- 
ment should transgress the limits prescribed to 
them by the Constitution, how are they to be re- 
strained ? Are they to be restrained by themselves ? 
Is their discretion to be the only measure of their 
powers? The idea is absurd. Liken it to a 
common case. If my agent exceeds the powers 
which I have delegated to him, am I to supplicate 
him to review his conduct and to change it ? No ! 
That would imply a discretionary power in him, 
either to adhere to or to abandon his errors and 
misconduct. I consider the General Assembly as 
the grand inquest of the commonwealth. They 
are bound in duty, as well as by oath, to support 
their own as well as the Federal Constitution ; and 
all attempts to violate either, from whatever quar- 
ter offered, demand their earliest consideration 
and reprehension. The legislature is the consti- 
tutional and proper organ through which the will 



The Resolutions, 93 

of the people is known, and, when known, effectu- 
ally executed on ordinary occasions ; therefore an 
article declaring that the people through their 
legislature had a right to censure those who attempt 
a violation of their rights would not be more alD- 
surd than debasing. 

If Congress received no censure, from the State 
legislatures, from whom is the censure to come ? 
The gentleman says, from the people. Yet when 
the people take up the subject and express their 
sentiments on it, they are stigmatized with the ap- 
pellation of irregular assemblies, tumultuous mobs 
— mere sprouts from one root forced into unnatural 
growth by intrigue and ambition. When the legis- 
lature comes forward a new cry is raised ; their 
powers are demanded ; the constitutional article is 
called for. Sir, I look for no such article ; the 
powers of the legislature w^ere antecedent to the 
Constitution, and were not surrendered when that ^ 
Constitution was adopted. Is it possible the gen- 
tleman can mean that Congress are the sole judges 
of the propriety and constitutionality of all acts 
done by them ? 

Will he say that in no case it can be proper for 
the several States to come forward and speak on 
the subject of congressional proceedings ? The 
doctrine of passive obedience and non-resistance 
has grown rather unfashionable and obsolete to be 
now revived. My idea, Mr. Chairman, of the true 
relative situation of the State Governments and of 
the General Government is concisely but clearly 
stated in the first resolution before you. So long 
as I regard my liberties I shall oppose the principle 
now contended for by the gentleman of a consoli- 
dated government. To be explicit, sir, I consider 
the co-States to be alone parties to the Federal \ 
compact, and solely authorized to judge in the last j 
resort of the power exercised under that compact. » 
Congress being not a party, but merely the creature 



94 The Resolutions, 

of the compact, and subject as to its assumptions 
of power to the final judgment of those by whom 
and for whose use itself and its powers were all 
created. I do not consider Congress, therefore, 
tlie lords and masters of the State, but as their ser- 
vants. They are not, as I before said, a party in 
the Federal compact, but agents intrusted with a 
limited authority, which, if they exceed, they are 
amenable to the authority by which they were con- 
stituted. When the government of the United 
States enact impolitic laws, we can only say : We 
pray you to repeal them. As to matters of mere 
policy they are, it is admitted, vested with a discre- 
tionary power. But when they pass laws beyond 
the limits of the Constitution — laws which they are 
no more authorized to pass than the Grand Turk — 
^we do not ask a repeal, but ought to make a legis- 
llative declaration that, being unconstitutional, they 
|are therefore void and of no effect Let it be 
i granted that honest judges may refuse to act upon 
them ; but Congress itself, if it be possessed of 
virtue and wisdom, will on the representations of 
the State legislatures expunge their unconstitutional 
proceedings from the annals of the United States. 
If, upon the representations of the States from 
whom they derive their powers, they should never- 
theless attempt to enforce them, I hesitate not to 
declare it as my opinion that it is then the right 
and duty of the several States to nullify those acts, 
and to protect their citizens from their operation. 
But I hope and trust such an event will never hap- 
pen, and that Congress will always have sufficient 
virtue, wisdom, and prudence, upon the representa- 
tion of a majority of the States, to expunge all 
obnoxious laws whatever. And after all, who are 
the judiciary, the body in which the gentleman 
places such unbounded confidence ? 

Who are they, but a part of the servants of the 
people created by the Federal compact ? And if 



The Resolutions, 95 

the servants of the people have a right, is it good 
reasoning to say that the people, by whom and for 
whose benefit both they and the government were 
created, are destitute of that right ? Or that the 
people's representatives, emanating immediately 
from the people, have nothing to do but to behold 
in silence the most flagrant violations of their 
rights and bow in silence to any power that may 
attempt to oppress them ? What line of conduct, 
then, does the gentleman recommend ? If the 
States be already reduced to that deplorable situa- 
tion, that they have no right to remonstrate with 
men who may meditate their annihilation, it is time 
that we should retire to our homes and mournfully 
prepare for a fate which we are destined to submit 
to. But the committee, I trust, are actuated by 
other and nobler principles, and instead of taking 
exceptions or demurrers to the jurisdiction of this 
committee, will take up the resolutions and ex- 
amine them one by one. 

Should they deem those laws constitutional, I 
doubt not they will reject the resolutions ; but if 
they think otherwise, they cannot object to so 
moderate and peaceable a measure as that of ad- 
dressing the sister States. We do not pretend to 
set ourselves up as censors for the Union ; but we 
will firmly express our own opinions and call upon 
the other States to examine their political situa- 
tion ; I therefore now challenge the gentleman to 
come forward and controvert the resolutions, and 
to prove that the laws complained of are constitu- 
tional. I do aver they are not, and do aver also, 
that the great political truths contained in those reso- 
lutions cannot be controverted until republicanism 
and its votaries become extinct. 

This speech of Mr. Breckinridge's was well cal- 
culated to carry the convictions of the House, even 
if the case had not been prejudged, as undoubtedly 



96 The Resolutions, 

it was. The argument was in itself able and vigor- 
ous, and to the smallest details played upon the 
chords of local prejudices and self-interest. These 
speeches formed the centre of debate. A number 
of others spoke upon the subject, in the main 
briefly, and their remarks were not regarded as of 
sufficient value to be preserved, so that now nothing 
except the names of the others who spoke are pre- 
served. 

The resolutions passed substantially as proposed. 
The amendments agreed to, out of a number pro- 
posed, were the following : " In the last line but 
one of the sixth Resolution, before the word 
^negative,' it was agreed to insert ^ qtialified.' In 
the ninth Resolution, twenty-fifth line, after the 
word ^ are* it was agreed to insert * tamely.^ " And 
in the ninth Resolution, sixty-seventh line, for 
" necessary ^^' it was agreed to substitute " may tend 
tor ' 

Thus amended the resolutions passed the Com- 
mittee of the whole and the House. Mr. Murray 
voted against the whole series. A single vote was 
added to his against the second, third, fourth, fifth, 
sixth, seventh, and eighth, and a total of three were 
cast against the ninth. 

They were then sent to the Senate, and after an 
unsuccessful effort to amend them, made by John 
Pope, they were unanimously concurred in on the 
13th day of November, and were approved by 
Governor Garrard on the i6th. Thus in the inter- 

^ The Palladium, Frankfort, Ky., Nov. 13, 1798. 



The Resolutions. 07 

val between the 7th, on which day the legislature 
assembled and heard the governor's address, and 
the 1 6th, these important resolves, destined to have 
a profound influence not only on the history of the 
State, but of the Union, were suggested, offered, 
put through the two legislative bodies, and signed 
by the governor. Such action upon so important 
a subject seems on first thought improperly pre- 
cipitate ; but, in truth, the event was only the 
natural result of long and mature preparation, and 
the resolutions were only a thoroughly revised and 
perfected form of the opinions held and expressed 
by a large proportion of the citizens for months 
previously, and the subject had been so thoroughly 
ventilated and so exhaustively debated in all kinds 
of assemblages that the measure needed but to 
be suggested to receive instant and unqualified 
assent. 

The favor accorded to the resolutions in the 
legislature was not greater than that with which 
they were received everywhere throughout the 
StatQ.^ The people of Kentucky, as has already 
been said, were remarkably unanimous on the 
policy demanded by these unpopular laws. Mr. 
Breckinridge, too, was a man in whom the people 
felt a strong and growing confidence, and the re- 
sult was a complete assent to the action of the 
legislature. There were, indeed, not a few, some 
of them men of eminent talents and position, who 
looked upon them with regret. Chief among these 
was Humphrey Marshall, the Senator who had 
been elected by the Federalists in the moment of 



gS The Resolutions, 

highest reaction, brought on by the insolence of 
Genet. He had been a vigorous Federalist from 
the earliest times, a strong pleader for patient 
waiting on the pleasure of Virginia and Congress 
in the matter of separation, an earnest advocate of 
ratification in the Virginia constitutional conven- 
tion, wholly opposed to any intrigue to obtain the 
coveted Mississippi trade, and the capstone of his 
Federalism was placed when he voted for the hated 
legislation of this year in Congress. It is told with 
much evidence of truth that when he returned from 
the session of 1798 to Kentucky, a body of his in- 
dignant constituents apprehended him at night and 
were about to see what effect a bath in a neigboring 
horsepond would have on Federalist sentiments. 
Displaying rather more popular gifts than usual, he 
appealed to their prevailing religious sentiments, and 
insisted that it was quite out of place to put a man 
under the water till he had had an opportunity to re- 
late his " experience." The appeal was successful, 
and, mounted upon a cask, he delivered a harangue 
which so pleased his auditors that they released 
him and sent him home without his bath. He was 
now politically dead in Kentucky, but he took a 
sharp-tongued revenge on the times and the lead- 
ers in after years in his able but partisan history 
of Kentucky. He was the leader of the Federalists, 
and what could be done they did. But as a very 
prominent gentleman of Woodford County said, at 
the time, in a letter to Mr. Breckinridge : " Your 
Resolutions have given the palsy to the friends of 
the Federal administration in this quarter, which 



The Resolutions. 99 

I believe will be their effect throughout the State." ^ 
Not only did they " give the palsy " to the Fed- 
eralists, but they did much to make the political 
fortune of those prominent in their advocacy, and, 
as the leading part was Mr. Breckinridge's, he was 
given, without contest, the precedence in political 
honors. From the day the resolutions v/ere passed A 
his career was certain, and so long as he lived, [ 
certainly after the death of George Nicholas, which \ 
was near at hand, he held the first place in his f 
party in Kentucky, both in the eyes of his fellow- I 
citizens and of the leaders beyond the bounds of / 
his State. ' 

As soon as the resolutions were passed, the steps 
provided by them for their communication without 
the State were taken, and, in order that their doc- 
trines might be widely disseminated at home, a 
thousand copies were ordered to be printed. Of 
these, fifty copies were put in the hands of the 
Governor to be sent to the other States, and the 
Representatives in Congress, and the remainder 
divided among the members of the legislature.^ 

It was pretty well understood that there would 
be independent action on the part of Virginia. It 
was hoped that the other States would respond to 

^ Caleb Wallace to John Breckinridge. — Breckinridge 
Papers, MS. 

^ The Resolutions above given are from a copy from one of 
these, now in the possession of Col. R. T. Durrett and once 
the property of Hon. Jas. D. Breckinridge, and has been 
compared with the one in the Mass. Archives, and with copy 
of latter in Shaler's " Kentucky." The latter contains two 
palpable misprints, but has the honor of first practically re- ' 
storing to the public the true text beyond any question. 



lOO The Resolutions, 

the invitation, and too confidently expected that 
that response would be favorable. 

The Virginia House did not assemble until some 
time after that of Kentucky, and this question was 
not brought up until the 13th of December. The 
House then resolved itself into a Committee of the 
whole, with Mr. James Breckinridge in the chair, 
upon resolutions which had been offered by Mr. 
John Taylor, of Caroline, as follows : 

In the House of Delegates, 

Friday, December, 21, 1798. 

First. Resolved, That the General Assembly of 
Virginia doth unequivocally express a firm resolu- 
tion to maintain and defend the Constitution of 
the United States, and the Constitution of this 
State, against every aggression either foreign or 
domestic ; and that they will support the Govern- 
ment of the United States in all measures war- 
ranted by the former. 

Second, That this Assembly most solemnly de- 
clares a warm attachment to the Union of the 
States, to maintain which it pledges all its powers ; 
and that, for this end, it is their duty to watch 
over and oppose every infraction of those princi- 
ples which constitute the only basis of that union, 
because a faithful observance of them can alone 
secure its existence and the public happiness. 

Third. That this Assembly doth explicitly and 
peremptorily declare that it views the powers of 
the Federal Government as resulting from the 
compact to which the States are parties, as limited 
by the plain sense and intention of the instrument 
constituting that compact ; as no further valid than 
they are authorized by the grants enumerated in that 
compact ; and that, in case of a deliberate, palpaple, 
and dangerous exercise of other powers not granted 



The Resolutions, loi 

by the said compact, the States who are parties 
thereto have the right and are in duty bound to in- 
terpose for arresting the progress of the evil, and 
for maintaining within their respective limits the 
authorities, rights, and liberties appertaining to 
them. 

Fourth. That the General Assembly doth also 
express its deep regret that a spirit has in sundry 
instances been manifested by the Federal Govern- 
ment to enlarge its powers by forced constructions 
of the constitutional charter which defines them ; 
and that indications have appeared of a design to 
expound certain general phrases (which having 
been copied from the very limited grant of powers 
in the former Articles of Confederation, were the 
less liable to be misconstrued), so as to destroy the 
meaning and effect of the particular enumeration 
which necessarily explains and limits the general 
phrases ; and so as to consolidate the States by 
degrees into one sovereignty, the obvious tendency 
and inevitable result of which would be to transform 
the present republican system of the United States 
into an absolute, or, at best, a mixed monarchy. 

Fifth. That the General Assembly doth particu- 
larly protest against the palpable and alarming in- 
fractions of the Constitution in the two late cases 
of the *' Alien and Sedition Acts," passed at the 
last session of Congress ; the first of which exer- 
cises a power nowhere delegated to the Federal 
Government, and which, by uniting legislative and 
judicial powers to those of [the] executive, subverts 
the general principles of free government, as well 
as the particular organization and positive provi- 
sions of the Federal Constitution ; and the other of 
which acts exercises, in like manner, a power not 
delegated by the Constitution, but on the contrary, 
expressly and positively forbidden by one of the 
amendments thereto, — a power which, more than 
any other, ought to produce universal alarm, be- 



I02 The Resolutions. 

cause it is levelled against the right of freely ex- 
amining public characters and measures, and of 
free communication among the people thereon, 
which has ever been justly deemed the only effect- 
ual guardian of every other right. 

Sixth. That this State having by its convention 
which ratified the Federal Constitution expressly 
declared that, among other essential rights, '' the 
liberty of conscience and of the press cannot be 
cancelled, abridged, restrained, or modified by any 
authority of the United States," and from its ex- 
treme anxiety to guard these rights from every 
possible attack of sophistry or ambition, having, 
with other States, recommended an amendment for 
that purpose, which amendment was in due time 
annexed to the Constitution, — it would mark a re- 
proachful inconsistency and criminal degeneracy if 
an indifference were now shown to the palpable 
violation of one of the rights thus declared and 
secured, and to the establishment of a precedent 
which may be fatal to the other. 

Seventh. That the good people of this Common- 
wealth, having ever felt, and continuing to feel the 
most sincere affection for their brethren of the other 
States, the truest anxiety for establishing and per- 
petuating the union of all, and the most scrupulous 
fidelity to that Constitution, which is the pledge of 
mutual friendship, and the instrument of mutual 
happiness, the General Assembly doth solemnly 
appeal to the like dispositions of the other States, 
in confidence that they will concur with this Com- 
monwealth in declaring, as it does hereby declare, 
that the acts aforesaid are unconstitutional ; and 
that the necessary and proper measures will be 
taken by each for co-operating with this State, 
in maintaining unimpaired the authorities, rights, 
and liberties reserved to the States respectively, or 
to the people. 

Eighth. That the Governor be desired to transmit 



The Resohitions. 103 

a copy of the foregoing resolutions to the Executive 
authority of each of the other States, with a request 
that the same may be communicated to the Legisla- 
ture thereof ; and that a copy be furnished to each 
of the Senators and Representatives representing 
this State in the Congress of the United States. 
Attest: John Stewart. 

1798, December 24. 

Agreed to by the Senate : H. Brooke. 

A true copy from the original deposited in the 
office of the General Assembly. 

John Stewart, Keeper of Rolls. 

These Resolutions had been drawn by Mr. Madi- 
son, as soon afterwards transpired, probably at the 
instance of Mr. Jefferson, and certainly with his 
knowledge and approval. Mr. Madison sent them 
to John Taylor, whose known sentiments and ability 
marked him out as most suitable for the work of 
securing their adoption by the legislature. Mr. 
Taylor opened the debate, and was supported by 
a number of gentlemen, most notably by Wilson 
Carey Nicholas and William B. Giles. The debate 
was of a very different nature here from that in 
Kentucky. The minority was powerless to prevent 
the Republicans from doing what they would, but 
they were nevertheless able and respectable. George 
Keith Taylor led the opposition, with an eloquent 
argument, which was, however, rather calculated to 
stir the emotions and arouse the prejudices of 
his hearers, than to influence their calm reason, 
but was looked on as the more dangerous on that 
very account, for the people delighted in that kind 
of oratory. Mr. Mercer and General Lee were very 



I04 The Resolutions, 

vigorous supporters of Mr. George Keith Taylor, 
and the debate was prolonged and severe in the 
party assaults from both sides. Mr. James Breckin- 
ridge, though in the chair, and adding nothing to 
the debate, threw the weight of his influence, v/hich 
was very considerable, into the scale of the opposi- 
tion to the resolutions. He was a brother of John 
Breckinridge, but a decided Federalist, and in the 
next legislature was the opponent of James Monroe 
in the canvass for the governorship, and, though 
beaten, made a most creditable race against that 
eminent Republican and future President. 

The resolutions came to a vote on the 21st of 
December, after more than a week had been con- 
sumed in debate, and were passed in the House by 
one hundred to sixty-three. The original draft 
had been amended in the committee, so that the 
third resolution, third line, which read " to which 
the States alone are parties," had the word ^^ alone " 
stricken out, and the seventh resolution after the 
declaration that " the acts aforesaid are unconsti- 
tutional," lost the pregnant clause, " and not laWy 
but entirely null, void^ and of no force or effects 

Being sent to the Senate, a futile effort was made 
to amend, when they passed, by a vote of fourteen 
to three, on the 24th day of December, and were 
duly approved by the governor. 

Thus the States of Kentucky and Virginia 
took their stand side by side in a bold protest 
against the acts of Congress. The mother State 
yielded the precedence in this instance to the 
daughter. The resolutions of the latter were not 



The Resolutions. 105 

only passed at an earlier date, but they breathed 
more spontaneously and unanimously the spirit of 
the people, land what is of far more importance, | 
were drawn with a firmer hand and struck with far! 
more courage and far less reserve at the very points j 
objected to. The one faltered somewhat, qualified, i 
expressed in broad and uncertain general terms, 
the ideas that the other instrument dealt with with| 
pitiless specification. 7 The reason for this use of 
general terms in the Virginia Resolutions is ex-j 
plained in a letter from Mr. Madison to Mr. Jefferf 
son, written on the 29th of December, 1798. Mi^. 
Madison, as has already been remarked, was the 
author of these resolutions, and in a sort of retro- 
spective way speaks of the motives which had dic- 
tated their form. It may be said in passing that 
Mr. Madison did not in all probability see a copy 
of the Kentucky resolves, as passed, before com- 
pleting his own work, though their general tenor 
was known to him before the end of November, 
through a set of resolves sent him by Mr. Jefferson 
on the 17th of that month. Just what this paper 
was will be considered at length later on. To re- 
turn then, Mr. Madison says : 

I have not seen the result of the discussions at 
Richmond of the Alien and Sedition laws. It is to 
be feared that zeal may forget some considerations 
which ought to temper their proceedings. Have 
you ever considered thoroughly the distinction be- 
tween the power of the State and that of the legis- 
lature on questions relating to the Federal pact ? 
On the supposition that the former is clearly the 
ultimate judge of infractions, it does not follow that 



1 66 The Resolutions, 

the latter is the legitimate organ, especially as the 
convention was the organ by which the compact 
was made. This was a reason of great weight for 
using general expressions that would leave to other 
States a choice of all the modes possible of concur- 
ring in the substance, and would shield the General 
Assembly against the charge of usurpation, in the 
very act of protesting against the usurpation of 
Congress/ 

\ ^owever much this was true, it was equally true 
I that the substance was the same, and the apparently 
! milder resolutions of Virginia enunciated the same 
doctrines as the more categorical ones of Kentucky. 
Both of them plainly claimed the right of the_States 
to judge of infractions of the Constitution^ The 
plain, unvarnished statement of the Kentucky in- 
strument " that to this compact [the Constitution] 
each State acceded as a State, and is an integral 
party, its co-States forming, as to itself, the other 
party," and that " each party [/. e. each State] has 
an equal right to judge for itself, as well of infrac- 
tions as of the mode and measure of redress," has 
indeed no direct parallel in the other series, but 
the same doctrine is in effect there. So, too, while 
the Kentucky Resolutions declare that " whensoever 
the general government assumes undelegated pow- 
ers, its acts are unauthoritative, void, and of no 
force," and that certain specified laws " are alto- 
gether void and of no effect "; Mr. Madison's draft 
also contained similar words, and though stricken 
out by the House of Delegates, the same theory is 
involved in other statements which remain, notably 

* Madison's Works, vol. ii., p. 149. 



The Resolutions. 107 

in the declaration of the 3d resolution, that in the 
case mentioned the States " are in duty bound to 
interpose," for though the word " interpose " in it- 
self has a less plain meaning in the light of history 
than " nullification," the context approximates the 
two words very closely to each other.^ 

Sl very radical difference between the two sets 
will be noted in that the Virginia set address them- 
selves specifically only to the alien and sedition 
laws, while the other embraces within its purview 
other and less odious laws ; that it denies to the 
federal courts all cognizance of libels and similar 
offences, and in numerous other ways assails the 
action of the federal government. In order to 
make a distinct specification, an argument which, 
to say the least, was uncandid, and which proved a 
boomerang in the congressional debate on this sub- 
ject, was used in the 5th resolution. In setting 
forth the clause in the Constitution which provides 
" that the migration or importation of such persons 
as any of the States now existing shall think proper 
to admit, shall not be prohibited by the Congress 
prior to the year 1808," as a special provision giv- 
ing alien friends the protection of the individual 
States, a conscious and most improper wresting^of 
the Constitution was indulged in. It was well 
known that this clause was only intended to apply 
to slaves, and it was a sop thrown to the Southern 
slaveholders to induce them to concur in the Con- 
stitution, which seemed unlikely to be obtained if 

^ See Von Hoist, "Constitutional History U. S.," vol. i., 
pp. 146-8, et seq. 



io8 The Resolutions, 

the slave trade was put an end to at once. These 
same men, compelled to yield to the necessity of 
some compromise, were yet unwilling to stain the 
Constitution with any recognition of the " South's 
peculiar institution," and somewhat uncandidly 
sought, by this impersonal phraseology, to com- 
pound with their consciences for sanctioning in 
fact an iniquity they could not acknowledge in 
words which they rightly judged were to be more 
enduring than brass. Hence, for a State to use a 
clause to support an argument, when that clause 
had been a concession to a section of which it was 
a part, for a special end, and was enjoyed by them 
to that end at the very time, when the subject 
under debate was wholly foreign to it, — was a pal- 
pable attempt to take an unfair advantage. Not 
only so, but it was wofully inconsistent when the 
matter in hand was an alleged illegitimate extension 
of constitutional provisions to subjects not within 
me intention of the framers. 

/ Owing to the specific allegations of the Kentucky 

/Resolutions, and the vigorous language in which 

[they were couched, they became almost a party 

I platform for the party struggling towards organiza- 

ition. Mr. Jefferson, and all those who thought 

with him, saw the importance of making the alien 

and sedition acts the issue in the coming contests. 

This and all the similar stretches of the narrowest 

bounds of constitutional provisions, were ventilated, 

assaulted, and systematically hailed as the outcome 

of British affiliations and monarchial tendencies. 

The drift of public opinion was not slow in show- 



The Resolutions. 109 

ing itself, and as the fear of war gave way to 
certainty of peace, the unv/isdom of all extreme 
measures grew more and more plain. Anti-Feder- 
alism, now fully-fledged Republicanism, grew rap- 
idly in the country. As yet the Congress was 
strongly Federalist and in the height of the pride 
that goes before a fall ; and just as its opponents 
were growing truly dangerous, disintegration and 
decay sprang up in the Federalist party, and the 
very Cabinet itself became the hotbed of intrigue 
and disorder. Nothing escaped the watchful eye 
of the chief of the new party, and he continued to 
play his strong card with vigor and prudence. 



V. 



THE RESOLUTIONS BEFORE THE STATES 

AND CONGRESS. 

A STATE of hopeful expectancy followed the 
decided action of their legislatures in Virginia 
and Kentucky. They believed they had done their 
duty, and they now waited to see how their de- 
clarations would be received in the other States 
and in Congress. In Kentucky there was not a 
single prosecution under the alien and sedition 
acts, and that State had done certainly the utmost 
that could have been expected of it. It regarded 
the mere passage of the acts as a menace to the 
liberties of its people, and it was quick to deny the 
power in any part of the general government to carry 
out these acts, or, indeed, the right of Congress 
to offer this menace even had there been no inten- 
tion of carrying it out. The situation in Virginia, 
though different, was never serious enough to lead 
to any thing like organized resistance. Indeed, it 
is now impossible to decide just how far and in 
just what form resistance was contemplated by 
these Resolutions. At present these two States 
were content to protest and await the reception 
this protest should meet with in the other 

no 



States and Congress. 1 1 r 

States, as well as the action Congress should 
take. For the latter a patient waiting was neces- 
sary. The fifth Congress was now in its last ses- 
sion, and the sixth was already elected, and not 
only so, but having been chosen in the height of 
the warlike feeling towards France, was even 
stronger in Federalist sentiments than the present 
body. Nothing was to be hoped from it. Moreover, 
the more odious act would expire by its original 
limitation, March 3, 1801, and the following day a 
new Congress and a new administration were to be- 
gin. That day might be made, if prudent counsels 
and active measures meanwhile prevailed, the in- 
auguration of a new order of things. If calm judg- 
ments could but control violent tendencies, a peace- 
ful revolution might then be effected, whose result 
would be all that could be desired. And so the Re- 
publican party in these two States and throughout 
the country, losing meanwhile no opportunity to de- 
clare their principles, leaving no stone unturned to 
make proselytes, watchfully waited on the course 
of events. 

Early in February, 1799, ^^ question of action 
on the resolutions began to come up in the other 
States. Delaware was the first to pass judgment 
upon them. Her answer was expressed with 
laconic brevity : 

Resolved, By the Senate and House of Represen- 
tatives of the State of Delaware, in General As- 
sembly met. That they consider the Resolutions 
from the State of Kentucky [Virginia], as a very 
unjustifiable interference with the general govern- 



112 The Resolutions before the 

ment and constituted authorities of the United 
States, and of dangerous tendencies, and therefore 
not a fit subject for the further consideration of the 
General Assembly. 

Delaware was very thoroughly Federalist, and no 
other sentiments were to be expected thence, so 
making what merriment they could over the air, — 
as of a careful mother guarding her children from 
moral pollution, — contained in the last sentiment 
of this reply, the Republicans awaited develop- 
ments. But February and March brought only 
three replies, and all of them unfavorable. The 
first was brief and from Rhode Island. Little 
Rhody had drifted around from her uncompromis- 
ing non-federal notions, and in a few categorical 
sentences said a good deal that was decided, de- 
claring the Federal judiciary alone could decide 
the question of constitutionality ; that the other 
legislatures had been meddling in what was none 
of their business, and that this legislature " i7i their 
private opinions " believed " these laws within the 
powers delegated to Congress and promotive of the 
welfare of the United States." Next came Mas- 
sachusetts with a long and able document, argu- 
mentative and comprehensive, the chief points of 
which were an insistance upon the sole jurisdiction 
of the Supreme Court of the United States in ques- 
tions of constitutionality, the distinction between 
liberty and freedom of speech and of the press in 
contradistinction to license, and a less pointed but 
significant allusion to the exercise, and the propriety 
of the exercise, of common-law powers by the Su- 



States and Congress. 113 

preme Court. New York came next with a reply 
from the Senate taking, in briefer form, much the 
same grounds. This was passed March 5th. There 
was then a lull till the middle of May, when Con- 
necticut passed a reply of the same character with- 
out adding any thing to the situation. New Hamp- 
shire was more excited by the red flag of de- 
mocracy, and no less zealous than the other States 
of New England, and somewhat more radical in 
language, and asserted not merely devotion to the 
Constitution and approbation of the acts of Con- 
gress, but gave voice to a warlike outburst worthy 
of a more southern birthplace. Her long resolu- 
tion, following a very short preamble, which merely 
recites the exciting cause and the machinery of 
action, is worth quoting. 

Resolved^ That the Legislature of New Hamp- 
shire unequivocably express a firm resolution to 
maintain and defend the Constitution of the United 
States and the constitution of this State against 
every aggression, either foreign or domestic, and 
that they will support the Government of the Uni- 
ted States in all measures warranted by the former. 

That the State Legislatures are not the proper 
tribunals to determine the constitutionality of the 
laws of the General Government ; that the duty of 
such decision is properly and exclusively confined 
to the Judicial department. 

That if the Legislature of New Hampshire, for 
mere speculative purposes, were to express an opin- 
ion on the acts of the General Government, com- 
monly called " the Alien and Sedition Bills," that 
opinion would unreservedly be that those acts are 
constitutional, and in the present critical situation 
of our country highly expedient. 



114 The Resolutions before the 

That the constitutionality and expediency of the 
acts aforesaid have been very ably advocated and 
clearly demonstrated by many citizens of the Uni- 
ted States, more especially by the minority of the 
General Assembly of Virginia. The Legislature of 
NewHampshir e therefore deem it unnecessary by 
any train of arguments to attempt further illustra- 
tion of the propositions, the truth of which it is 
confidently believed at this day is very generally 
seen and acknowledged. 

The last State to express her sentiment on these 
resolutions was Vermont. In similar terms with 
the other New England States, she replied on the 
30th day of October, 

Thus replies were received from seven States 
out of the fourteen. New Jersey and Pennsylvania 
made none, and none of the Southern States. It 
was rumored that North Carolina had voted the 
Virginia Resolutions under the table, so Mr. Madi- 
son writes to Mr. Jefferson * ; but whatever were 
the sentiments of that State, no official action was 
taken. This, however, was sufficiently certain from 
the known political bias of the various States, that 
it was no longer to be hoped that the two memorial- 
izing States would be supported by the requisite 
number to form even a majority of the then sixteen 
States. This fact, when it became apparent, threw 
a wet blanket on the high hopes once ascertained. 
From union of States, as States, nothing was at 
that time to be hoped for. 

Not only was this so, but other States, although 
they did not send replies to the States making 

^ Madison's Works, vol. ii. , p. 152. See 2l'~>o post. p. 146. 



States and Congress. 115 

the overture, yet placed themselves on record against 
the principles of these Resolutions. These were 
Maryland, New Jersey, and Pennsylvania, making 
in all ten States which had declared against the 
right of the States to interfere with congressional 
action, and in favor of the constitutionality of the 
acts of Congress. 

But, though this was true, a great number of 
petitions came in when Congress convened ask- 
ing for the repeal of the laws, and it was upon 
these petitions that the debate in that body arose. 
It does not appear that the Kentucky and Virginia 
Resolutions were laid before Congress at all. But 
this was only a formal omission — if indeed it was 
omitted ; for every one in both Houses was cog- 
nizant of them, and though the members preferred 
to act on the petitions of their 'constituents, these 
resolutions, as being finished formulas of the prin- 
ciples involved, could not fail to affect the consid- 
eration of whatever related to them. Several minor 
questions relating to this subject came up during 
the session, such as a motion to have a number of 
copies of these acts of Congress printed for distri- 
bution in Virginia and elsewhere, on the ground 
that the action taken on them evinced the greatest 
ignorance of their contents ; but the main issue 
was on the report of the committee, to which the 
petitions for repeal had been made. This commit- 
tee reported adversely, and it was attempted to pass 
the report quietly over the heads of the opposition 
by the all-powerful party vote. But the opposition 
were determined to be heard, and though it was 



1 1 6 The Resolutions before the 

amid the coughs and jeers of the majority, Living- 
ston of New York, Gallatin of Pennsylvania, and 
John Nicholas of Virginia spoke against the adop- 
tion of the committee's report. 

Mr. Jefferson, writing to Mr. Madison under 
date of February 26, 1799, says : " Yesterday wit- 
nessed a scandalous scene in the House of Repre- 
sentatives. It was the day for taking up the report 
of their committee against the Alien and Sedition 
laws, etc. They held a caucus and decided that 
not a word should be spoken on their side, in an- 
swer to any thing that might be said on the other. 
Gallatin took up the Alien and Nicholas the Sedi- 
tion law, but after a little while of common silence, 
they began to enter into loud conversations, laugh, 
cough, etc., so that for the last hour of these gen- 
tlemen's speaking, they must have had the lungs of 
a vendue master to have been heard. Livingston, 
however, attempted to speak. But after a few sen- 
tences, the Speaker called him to order and told 
him what he was saying was not to the question. 
It was impossible to proceed. The question was 
taken and carried in favor of the report, fifty-two 
to forty-eight." 

Livingston's attempt to speak was on a motion 
that the Committee of the whole rise, in order to 
give time for the thorough ventilation of the sub- 
ject. The Federalists objected on two grounds. 
They considered this whole motion a questionable 
subject for debate, tending to poison the public 
mind, but especially did they desire to cut it off 
now when, the sands of that session being nearly 



States and Congress. 117 

run, time was most precious. They, therefore, 
pressed for an immediate vote. The Republicans, 
on the other hand, confidently trusted in the belief 
that the principle underlying these laws was, from 
the very nature of the case, certain to be unpopular 
when once the ear of the multitude was reached. 
They therefore fought strenuously for a complete 
and full debate of even the minutest point. The 
immense number of signatures on the petitions for 
repeal, especially in the Middle States, encouraged 
them to redoubled efforts. These efforts gained 
them very little grace in the House, but when the 
Speaker went so far as to tell Livingston that the 
question on the alien bill had already been de- 
cided, and that on the occasion of the passage of 
that act, nearly a year before, he had already 
" spent all his bitterness and all his threats," ^ he 
pressed the gag so far as to insure much sympathy 
for the cause out of the doors of Congress. 

The infatuated Federalists, intoxicated v\^ith suc- 
cess, were utterly blind to the signs of the times. 
There was no lack of able men in that once great 
party, but there was a want of men of truly 
popular gifts, who could understand that the peo- 
ple could not be driven but might be led, who 
could look to the people with that catholic confi- 
dence that was the " open sesame " to every heart 
in the words and acts of Jefferson. That states- 
man with unerring eye had some time before ob- 
served the way public opinion was drifting. On 
the 13th of February of this year he wrote to Mr. 
' Jefferson's Works, vol. iv., p. 299. 



1 1 8 The Resolutions before the 

Stewart in Virginia : " A wonderful and rapid 
change has taken place in Pennsylvania, Jersey, 
and New York. Congress is daily plied with 
petitions against the Alien and Sedition laws and 
standing armies. Several parts of this State 
[Pennsylvania] are so violent that we fear an 
insurrection. This will be brought about by 
some if they can. It is the only thing that we 
have to fear. The appearance of an attack of 
force against the government would check the 
present current of the Middle States, and rally 
them around the government ; whereas, if suffered 
to go on, it will pass on to a reformation of abuses. 
The materials now bearing on the public mind will 
infallibly restore it to its republican soundness in 
the course of the present summer, if the knowledge 
of the facts can only be disseminated among the 
people. Under separate cover you will receive 
some pamphlets, written by George Nicholas, on 
the acts of tlie last session. These I would wish you 
to distribute, not to sound men who have no occa- 
sion of them, but to such as have been misled, are 
candid, and will be open to the conviction of truth, 
and are of influence among their neighbors." ^ The 
same sentiments were repeated in a letter to Ed- 
mund Pendleton on the following day, and were 
accompanied by an urgent request that he would 
lend his great influence to help on the movement.* 
Indeed, even in earlier letters, as in that to Mr. 
Madison on the 30th of January/ the same hopes 

^ JefEersoa's Works^ vol. iv., p. 286. ^ Idem^ p. 287. 

^ Idem^ p. 280. 



States and Congress, 1 1 9 

were alluded to and the same policy sketched. 
Thus, while the Federalists were carrying things 
with a high hand in Congress, and drifting into an 
unhappy and fatal cabal within their own ranks, 
the Republicans, with every muscle tense and every 
sense on the alert, were building the firm founda- 
tions of a great victory and a great party. 

In accordance with Mr. Jefferson's views, which 
seem to have been very generally the common 
judgment of the Republican leaders, the utmost 
patience was to be the chief characteristic of the 
policy which they were now to pursue ; but at all 
times it was to have for its yoke-fellow a bold de- 
nunciation of the Federalists* policy in general and 
of the alien, sedition, and army bills in particular. 
In pursuance of this policy Mr. Madison left Con- 
gress, stood for the House of Delegates, and was 
elected. This was enough to indicate the intention 
of again protesting through the State legislatures. 
In midsummer, 1799, Colonel Wilson Carey Nicho- 
las was about to set out from Virginia for Kentucky, 
where his brother George Nicholas had just died, 
when Mr. Jefferson wrote to him, urging him to 
meet Mr. Madison and himself at Monticello in 
the last week of August, to discuss the programme 
proper to be pursued in the winter. Colonel 
Nicholas was an intimate in the little circle of 
Monticello, and had been deep in the councils of 
the preceding year. Mr. Jefferson felt "deeply 
impressed with the importance of Virginia and 
Kentucky pursuing the same track at the ensuing 
sessions of their legislatures," ^ and could not have 

^ Jefferson's Works, vol. iv., p. 304. 



1 20 The Resolutions before the 

had a more trustworthy bearer of his advice to 
Kentucky. Colonel Nicholas was unable to accept 
the invitation, and Mr. Jefferson proceeded to lay 
out his plan in a letter of the 5th of September/ as 
follows : 

Dear Sir : — Yours of August 30th came duly to 
hand. It was with great regret we gave up the 
hope of seeing you here, but could not but con- 
sider the obstacle as legitimate. I had written to 
Mr. Madison, as I had before informed you, and 
had stated to him some general ideas for consider- 
ation and consultation when we should meet. I 
thought something essentially necessary to be said 
in order to avoid the inference of acquiescence ; 
that a resolution or declaration should be passed : 
I. Answering the reasonings of such of the States 
as have ventured into the field of reason, and that 
of the committee of Congress ; taking some notice, 
too, of those States who have either not answered 
at all, or answered without reasoning ; 2. Making 
firm protestation against the precedent and princi- 
ple, and reserving the right to make this palpable 
violation of the Federal compact the ground of do- 
ing in future whatever we might now rightfully do 
should repetitions of these and other violations of 
the compact render it expedient ; 3. Expressing in 
affectionate and conciliatory language our warm 
attachment to union with the sister States and to 
the instrument and principles by which we are 
united ; and we are willing to sacrifice to this every 
thing but the rights of self-government in those im- 
portant points which we have never yielded, and in 
which alone we see liberty, safety, and happiness ; 
that, not at all disposed to make every measure of 
error or of wrong a cause of scission, we are willing 
to look on with indulgence, and to wait with 

^ Jefferson's Works, vol. iv., p. 305. 



States arid Congress, 121 

patience, till those passions and delusions shall 
have passed over, which the Federal government 
have artfully excited to cover its own abuses and 
conceal its designs, fully confident that the good 
sense of the American people and their attachment 
to those rights which we are now vindicating, will, 
before it shall be too late, rally with us round the 
true principles of our Federal compact. This was 
only meant to give a general idea of the complexion 
and topics of such an instrument. Mr. M., who 
came, as had been proposed, does not concur in 
the reservation proposed above ; and from this I 
recede readily, not only in deference to his judg- 
ment, but because, as we should never think of 
separation but for repeated and enormous viola- 
tions, so these, when they occur, v/ill be cause 
enough of themselves. 

To these topics, however, should be added ani- 
madversions on the new pretensions to a common 
law of the United States. I proposed to Mr. 
M. to write to you, but he observed you knew his 
sentiments so perfectly from a former conference 
it was unnecessary. As to the preparing any thing, 
I must decline it to avoid suspicions (which were 
pretty strong in some quarters on the late occa- 
sion), and because there remains still (after their 
late loss) a mass of talents in Kentucky sufficient 
for every purpose. The only object of the present 
communication is to procure a concert in the gen- 
eral plan of action, as it is extremely desirable 
that Virginia and Kentucky should pursue the 
same track on this occasion. Besides, how could 
you better while away the road from hence to 
Kentucky than in meditating this very subject, 
and preparing something yourself, than whom no- 
body will do it better. The loss of your brother 
and the visit of the apostle Marshall ' to Kentucky 

' Omitted in printed works, restored by Miss Randolph in 
The Nation for May 5, 1887. 



V 



> 



12 2 The Resolutions before the 

excite anxiety. However, we doubt not that his 
poisons will be effectually counterworked. Wish- 
ing you a pleasant journey and happy return, I am, 
with great and sincere esteem, dear sir, your affec- 
tionate friend and servant. 

The loss of George Nicholas, above alluded to, 
was indeed a great loss, both to his State and his 
party. Although not the mover of the resolutions 
of the preceding year, as has been so often claimed 
for him, he was active and influential in dissemi- 
nating the Republican doctrines by speeches, let- 
ters in the public press, and controversial pam- 
phlets. The honorable position he had v/on for 
himself, moreover, gave the greatest weight to all 
he did. 

Despite the advice thus conveyed by so eminent 
a messenger from so high a quarter, when the Ken- 
tucky legislature met in November, it was at first 
thought wise to let the matter drop. But, after a 
time, lest they should be thought to recede from 
their former position and acquiesce in the decisions 
of the other States, it was decided that some re- 
assertion of the principles enunciated the preceding 
year should be made.^ 

* The following extract from a letter written by Mr. Breck- 
inridge to Mr. Jefferson gives so clear an idea of the grounds 
of action, the entire independence of any thing that Colonel 
Nicholas may have recommended, and contains such a preg- 
nant allusion to the feeling in the Senate even then in regard 
to the clause containing the word "nullification," that it is 
worth quoting at length, 

Frankfort, Ky., Dec. 9, 1799. 
"Dear Sir: 

" I took the liberty by the last post of inclosing to you the 
proceedings of our Legislature (now in session) in support of 



States and Congress, 123 

Mr. Breckinridge, who was now Speaker of the 
House of Representatives, in pursuance of his de- 
termination, proceeded to introduce the instrument 
known as the Resolutions of 1799, which con- 
sisted of a long preamble and a short resolution. 
The reassertion of the old doctrines could not fail 
to be regarded in Kentucky, under the existing 
sentiments of the people, as an honorable work, 
and it was naturally assigned to the champion of 
1798. The Resolutions received the assent of the 
House, Senate, and Governor as a matter of course, 
although in the Senate some little stand against 
them was made. The following is the instrument 
as agreed to. 

In the House of Representatives, November 14, 1799. 

The house, according to the standing order of the 
day, resolved itself into a committee of the whole 
house on the state of the commonwealth, Mr. 
Desha in the chair, and after some time spent there- 
in, the Speaker resumed the chair, and Mr. Desha 
reported that the committee had taken under con- 

their Resolutions of the last session respecting the Alien and 
Sedition laws. It was at the opening of the session concluded 
to make no reply, but lest an improper construction should be 
put on silence, we drew up the paper which I inclosed you. 
In the lower House (of which I am a member) there was not a 
dissenting voice. In the Senate there was considerable division, 
particularly on that sentence which declares * a nullification 
of those acts by the States to be the rightful remedy.' It has 
so happened that what little federal influence exists among us, 
is at present concentred in the Senate. The election of Sena- 
tors in every district under our new constitution, and which 
must be made viva voce, by the people instead of by electors, 
will extinguish even this little influence. The great mass of 
the people are uncontaminated and firm, and as all appoint- 
ments now flow from the people, those who hold sentiments 
contrary to theirs will be discarded." 



V 



124 ^^ Resolutions before the 

sideration sundry resolutions passed by several state 
legislatures on the subject of the alien and sedition 
laws, and had come to a resolution thereupon, which 
he delivered in at the clerk's table, where it was 
read and unanimously agreed to by the house, as 
follows : 

" The representatives of the good people of this 
commonwealth in general assembly convened, hav- 
ing maturely considered the answers of sundry 
states in the Union to their resolutions passed at 
the last session, respecting certain unconstitutional 
laws of Congress commonly called the alien and 
sedition laws, would be faithless indeed to them- 
selves, and to those they represent, were they silent- 
ly to acquiesce in the principles and doctrines at- 
tempted to be maintained in all those answers, that 
of Virginia only excepted. To again enter the field 
of argument, and attempt more fully or forcibly to 
expose the unconstitutionality of those obnoxious 
laws, would, it is apprehended, be as unnecessary as 
unavailing. We cannot, however, but lament, that 
in the discussion of those interesting subjects, by 
sundry of the legislatures of our sister states, un- 
founded suggestions, and uncandid insinuations, 
derogatory of the true character and principles of 
the good people of this commonwealth, have been 
substituted in place of fair reasoning and sound 
argument. Our opinions on those alarming meas- 
ures of the general government, together with our 
reasons for those opinions, were detailed with de- 
cency and with temper, and submitted to the dis- 
cussion and judgment of our fellow-citizens through- 
out the Union. Whether the like decency and 
temper have been observed in the answers of most 
of those States who have denied or attempted to 
obviate the great truths contained in those Resolu- 
tions, we have now only to submit to a candid 
world. Faithful to the true principles of the federal 



States and Congress, 125 

union, unconscious of any designs to disturb the 
harmony of that union, and anxious only to escape 
the fangs of despotism, the good people of this 
commonwealth are regardless of censure or calum- 
niation. Least, however, the silence of this com- 
monwealth should be construed into an acquiescence 
in the doctrines and principles advanced and at- 
tempted to be maintained by the said answers, or 
least those of our fellow-citizens throughout the 
Union, who so widely differ from us on these im- 
portant subjects, should be deluded by the ex- 
pectation that we shall be deterred from what we 
conceive our duty, or shrink from the principles 
contained in those Resolutions ; therefore 

" Resolved^ That this commonwealth considers the 
federal union upon the terms and for the purposes 
specified in the late compact, as conducive to the 
liberty and happiness of the several States ; that it 
does now unequivocally declare its attachment to 
the Union, and to that compact, agreeable to its 
obvious and real intention, and will be among the 
last to seek its dissolution ; that if those who ad-t 
minister the general government be permitted tcA 
transgress the limits fixed by that compact, by al 
total disregard to the special delegations of power 
therein contained, an annihilation of the state 
governments and the erection upon their ruins of 
a general consolidated government will be the in- 
evitable consequence ; that the principle and con- 
struction contended for by sundry of the State 
legislatures, that the general government is the 
exclusive judge of the extent of the powers dele- 
gated to it, stop nothing short of despotism, since 
the discretion of those who administer the govern- 
ment, and not the Constitution^ would be the 
measure of their powers ; that the several states 
who formed that instrument, being sovereign and 
independent, have the unquestionable right to 
judge of its infraction ; and that a nullification by 



126 The Resolutions before the 

those sovereignties of all unauthorized acts done 
under color of that instrument, is the rightful 
remedy ; that this commonwealth does, upon the 
most deliberate reconsideration, declare that the 
said alien and sedition - laws are, in their opinion, 
palpable violations of the said Constitution, and 
however cheerfully it may be disposed to surrender 
its opinion to a majority of its sister states in 
matters of ordinary or doubtful policy, yet in 
momentous regulations like the present, which so 
vitally wound the best rights of the citizen, it 
would consider a silent acquiescence as highly 
criminal ; that although this commonwealth as a 
party to the Federal compact will bow to the laws 
of the Union, yet it does at the same time declare 
that it will not now nor ever hereafter cease to 
oppose in a constitutional manner every attempt, 
from what quarter soever offered, to violate that 
compact : And, finally, in order that no pretexts 
or arguments may be drawn from a supposed acqui- 
escence on the part of this commonwealth in the 
constitutionality of those laws, and be thereby used 
as precedents for similar future violations of the 
federal compact, this commonwealth does now 
enter against them its SOLEMN PROTEST." 

The only really remarkable thing in this docu- 
ment is that it, for the first time, uses the fateful 
word " nullification " in this connection. There was, 
indeed, little enough difference between the decla- 
rations of the resolutions of the last year and this, 
and this word was freely used by Mr. Breckinridge 
in the debate of the preceding year, but this word, 
which afterwards became the watchword of seces- 
sion, has been saddled with the whole burden of the 
extremest advocates of States'-rights, while the most 



States a7td Congress, 127 

active efforts have been used to relieve such earlier 
expressions as " interpose to arrest," etc., from this 
same burden. The chief difference between the 
two phrases seems to lie in the peculiar fitness of 
the one word to express the essence of the whole 
idea, and so to become a catch phrase, a fitness 
which any sentence or less terse expression, such as 
the others were, failed to possess. 

This, in one sense, terminated the action of 
Kentucky upon this question. In another, and 
perhaps a truer sense, her action was not complete 
until she had sent Mr. Breckinridge to the Senate, 
and done her part in electing Mr. Jefferson, and 
bringing about what he regarded as a peaceful 
revolution to the principles of true Republicanism. 
This was all she demanded ; thenceforth all her 
desires were satisfied, all her theories of government 
fulfilled, and from a turbulent, faction-ridden State, 
bound to the Union by a slender and galling tether, 
she became unqualifiedly loyal, with a tendency, 
which steadily increased for half a century, towards 
a strong central influence in almost all things — per- 
haps, with the exception of the tender subject of 
slavery, in all things. Even when that exception 
became the issue of the day, and her sister States 
rushed headlong out of the Union, as far as State 
action could take them, the centripetal force was 
still the stronger, and torn almost in two by conflict, 
disloyalty and factions of every kind, yet steadied 
by an unfailing majority, she remained true to the 
Union. 

Kentucky having acted with what Mr. Jefferson 



128 The Resolutions before the 

called " so much temper, firmness, and propriety," ^ 
the scene was once more shifted to Virginia. The 
answer of the various States to the resolutions of 
1798, were referred to a committee, of which Mr. 
Madison was one, and on him devolved the labor 
of preparing the report of that committee. This 
report was done with Mr. Madison's invariable 
painstaking care. The resolutions, and every point 
made against them, were taken up one by one and 
carefully examined and answered. It is superfluous 
to say that the result was masterly. It was a most 
exhaustive exposition of the position of a Republi- 
can in regard to the questions awakened by the 
whole discussion of the past two years. The report, 
which was extremely lengthy, was concluded by a 
brief resolution, to wit : ^^ Resolved^ That the General 
Assembly, having carefully and respectfully at- 
tended to the proceedings of a number of the States, 
in answer to their resolutions of December 21, 
1798, and having accurately and fully re-examined 
and re-considered the latter, find it to be their in- 
dispensable duty to adhere to the same, as founded 
in truth, as consonant with the Constitution, and as 
conducive to its preservation ; and more especially 
to be their duty to renew, as they do hereby renew, 
their protest against ' the Alien and Sedition Acts,* 
as palpable and alarming infractions of the Consti- 
tution." There were a few minor amendments 
made in the report, which passed the House by a 

^ Jefferson's Works, vol. iv., p. 318. To John Brackenridge 
— Mr. Jefferson invariably misspells the name, following a 
spelling peculiar to the Pennsylvania branch of the family. 



States and Congress. 129 

vote of 60 to 40, the minority being still strong. 
Mr. Madison had felt very anxious over the Senate, 
which was nearly equally divided, but he found it 
" in rather a better state than was expected," and 
the majority for his report was decided, the vote 
being 15 to 6. 

The matter, however, was not suffered to rest 
there, but a set of resolutions was brought in by 
Wm. B. Giles, " instructing the Senators to urge 
the repeal of the unconstitutional acts, the disband- 
ing of the army, and a proper arrangement of the 
militia." ' The debate was heated on these resolu- 
tions, but the majority was fixed, and any attempt, 
beyond mere verbal amendment, to stop or modify 
the action proposed in them was wholly vain. The 
vote was about two to one on the points upon which 
issue was taken. 

The work was done before the end of January, 
1800. The Republicans had carried things with a 
high hand in both Kentucky and Virginia. In the 
former there was no considerable objection, for the 
whole community was wellnigh as one man ; but 
in the latter it was far different. The remnant of 
Federalism had always been most able and respect- 
able. Many of the most honored of her statesmen 
belonged to that party, and the party, in its rank 
and file, was composed of the most weighty citizens. 
Washington, Henry and John Marshall were the 
honorable heads of the party ; Keith Taylor, 
General Lee, and James Breckinridge its active 

^ Madison to Jefferson. Madison's Works, vol. ii., several 
letters, pp. 151-6. 



130 The Resohttions before the 

leaders. Any body that could muster such men was 
deserving of high consideration ; but it was over- 
ridden here with the same violence that the equally 
respectable minority in Congress experienced. The 
beginning of this session of the legislature was the 
signal for the fall of Virginia Federalism. Much 
had been expected of Henry in this session ; but 
he died before it began, June 6, 1799. Washing- 
ton, too, passed away on the 14th of December. 
When Monroe, who was regarded as the very most 
dangerous of radical Democrats, was elected by a 
vote only slightly less than the party's strength 
over James Breckinridge, all things began to be 
very unpromising. John Nicholas, that fair-minded 
statesman, who, though v/hat he called a " supporter 
of government," in fine a Federalist, had so ably 
opposed the alien and sedition bills, closes a letter 
to Mr. Breckinridge at this time, with this wail, by 
way of postscript : 

" General Washington is dead ; Colonel Gamble, 
one of the most important real Americaii merchants 
in this State, it is reported, broke ; the legislature 
carrying every thing with a high hand to terrify 
men into their way of thinking ; Henry taken off 
just as he had got right ; in short. Providence and 
every thing else seems to be against our side this 
year. I hope we shall begin a new one better, or 
see our error, if we are wrong." 

Any hope of a change for many years to come 
was vain. The State was now wholly given over 
to the Republican party, with its illustrious citizens, 
Jefferson, Madison, and Monroe, at the helm, whose 



States and Congress. 131 

vigorous policy and long lives left no room for any 
reaction. 

Such was the great movement of 1798 and 1799 
in Kentucky and Virginia. The Old Dominion 
wielded a great influence in the domain of political 
thought, and, ably seconded by her vigorous daugh- 
ter of the new West in this instance, she could not 
fail to draw much support to herself in her ener- 
getic and unshaken support of the principles they 
had joined to enunciate. Their work in that direc- 
tion was complete. The issue was to be settled at 
the polls, and hopefully she awaited the result. 

The complete triumph of the Republicans in the 
elections of 1800 was the first act in a great revolu- 
tion of sentiment. It had at one time been a part 
of the president-elect's plan to have an amendment 
to the Constitution, embodying the principles of the 
Resolutions of 1798. For instance, he wrote to 
Philip Narbonne Nicholas early in 1800: "It is 
too early to think of a declaratory act as yet ; but 
the time is approaching, and not distant. Two 
elections more will give us a solid majority in the 
House of Representatives, and a sufficient one in 
the Senate. As soon as it can be depended on we 
must have ' a declaration of the principles of the 
Constitution,' in the nature of a declaration of 
rights in all the points in which it has been vio- 
lated." ^ But nothing ever came of the project. 
The country settled down into a general acquies- 

^ Jefferson's Works, vol, iv., p. 327. P. N, Nicholas was a 
brother of George, John, and Wilson Carey Nicholas, and a 
distinguished ornament of the bar and bench of Virginia. 



132 The Resolutions . 

cence in the Republican policy. Mr. Jefferson con- 
tinued to hold the confidence of his party, and 
passed it on to Mr. Madison, and although the 
Hartford convention reasserted much that was first 
promulgated in the Resolutions of 1798, the New 
England Federalists did not venture to found their 
pleas on any such precedents, and so for years the 
resolutions and the questions connected with, and 
growing out of, them slumbered. It was a new cen- 
tury and, in a large degree, a new generation that 
was to be vexed by two important and perhaps in- 
soluble problems connected with these Resolutions. 
The first of these is connected with the authorship 
of the Kentucky Resolutions of 1798, and the second 
with the theory of government expressed or in- 
tended to be expressed in them. These problems, 
or so much of them as may be properly discussed 
within the scope of this little work, will now be 
considered. 



VI. 



THE A UTHORSHIP OF THE KENTUCKY RESO- 
LUTIONS OF jyg8. 

It was early an open secret that the Virginia 
Resolutions of 1798, though presented in the legis- 
lature by John Taylor, of Caroline, a man in all 
respects competent to have drawn such an instru- 
ment, were from the pen of Mr. Madison. That 
distinguished statesman having descended into the 
lists, and assumed the leadership in the action of 
the Virginia legislature of the following year, this 
circumstance was very naturally divulged, and was 
openly avowed, among others, by John Taylor 
himself. Although, as Mr. Jefferson said, in his 
letter of September 5, 1799, to Wilson Carey 
Nicholas, already quoted, there had been sus- 
picions that he had had some more or less promi- 
nent part in the State protests against the alien and 
sedition laws, these suspicions did not take form 
for many years. Many of his own party knew that, 
while he abstained from assuming any public con- 
nection with the movement of 1798 and 1799 in 
opposition to the acts of Congress, he was in the 
fullest sympathy with it, and had written many let- 
ters to those he trusted in every part of the coun- 

133 



134 ^^ Authorship of the 

try, plainly expressing his opinions, and outlining 
the policy which he thought wisest to pursue. That 
he had had any further connection with the pro- 
tests of the legislatures, was believed by few, if any ; 
and if any one knew that he had any other rela- 
tion to them, they observed the most complete 
silence. Mr. Breckinridge lived and died with the 
full odium and the full credit, according as men 
regarded it, of the authorship, as well as of the 
advocacy, of the Kentucky Resolutions of 1798. 
It has never been pretended that this was once 
called in question during his life. It was a matter 
which, among his friends, was often adverted to, 
and it was esteemed his chief title to the remem- 
brance of posterity ; in Kentucky it was, as has 
already been said, both notorious and often pressed 
as a claim for political preferment ; wherever he 
went it was the act by which he was known. To 
some men he wore it like the brand of Cain upon 
his brow, for in this day we -can scarcely form an 
adequate conception of the height of party passion 
which then prevailed, or the bitter invectives used 
I against political opponents ; to others it was like 
/ a civic crown. He died with these mingled praises 
( and imprecations in his ears, but with the praises 
I fast becoming dominant, so that none could doubt 
that his fame and hold upon his countrymen's hearts 
/ were largely bound up in this important work. As 
time slipped by great changes occurred. The war 
of 1 81 2 brought new men and new issues. Many 
of those who had fought the battles of the old 
regime were dead, the Kentucky leaders of 1798 



Kentucky Resolutions of lygS, 135 

were not of those who were spared to the fulness of 
years and of honors. It was in 18 14, more than 
fifteen years after the event, that Mr. Breckinridge's 
authorship of the Resolutions was first questioned. 
In that year John Taylor, in a foot-note to a work 
on the principles of government, made the state- 
ment, without giving the grounds for it, that Madi-^ 
son was the author of the Virginia Resolutions, and 
Jefferson of the Kentucky Resolutions.* Naturally 
some attention must have been called to this state- 
ment, but it was at a time when the Resolutions 
were attracting little comment. The Hartford 
convention had recently enunciated very similar 
doctrines, but that body was too thoroughly Feder- 
alist to be willing to cite the Resolutions of 1798 
with any thing but horror ; and the Republicans 
were too hostile to the emanations from that conven- 
tion willingly to dwell on their own earlier publica- 
tion of like sentiments. Therefore the declaration 
passed almost unnoted ; especially does it seem 
certain that it did not come to the knowledge of 
Mr. Breckinridge's friends in Kentucky. It was 
not until seven years later that the matter was 
fairly brought into publicity. The Richmond [Vir- 
ginia] Enquirer in its issue for September 4, 182 1, 
editorially stated that the Kentucky Resolutions 
had been penned by Mr. Jefferson. It has never 
transpired from what source the editor of that 
journal derived the information upon which he 

* " Inquiries into the Principles and Policy of the Govern- 
ment of the United States," by John Taylor of Caroline, Va., 
Fredericksburgh, Va., 1814, p. 174. 



136 The A utJiorship of the 

based the statement, but it is not improbable that 
it was the printed works of John Taylor. The 
statement was brought to the notice of Joseph 
Cabell Breckinridge, the eldest son of John Breck- 
inridge, at that time Secretary of State of Kentucky. 
It was regarded by John Breckinridge's friends as 
entirely without foundation, — indeed, as one of 
those creations " out of the whole cloth " which 
editors of partisan newspapers are thought not in- 
frequently to indulge in. Had it been in derogation 
of the rights of the living, they felt it was a thing to 
be lightly passed by, but the claims of the dead are 
so easily postponed to the slightest pretensions of 
the living, that they felt that some refutation was 
advisable. Wishing to stand upon such sure ground 
that no one should ever be able to reassert so base- 
less a rumor with any hope of being believed, Cabell 
Breckinridge wrote to Mr, Jefferson upon the sub- 
ject, confidently expecting a complete and cate- 
gorical denial of the allegation. A copy of his 
letter was preserved in the letter-book of Joseph 
Cabell Breckinridge, and is here published in full.^ 

Frankfort, Nov. 19, 1821. 

Dear Sir : — If I had not experienced the effects 
of your candor and obliging indulgence on a former 
occasion, and on a subject connected with the 

^ This letter is an important link in the evidence, which 
shows conclusively that George Nicholas had no connection 
with the legislative action of these years, and that the follow- 
ing letter of Mr. Jefferson's was written to Mr. J. Cabell 

Breckinridge, and not to " Nicholas, Esq.," as published 

in Mr. Jefferson's works. It was first published by the author 
of this monograph in the Magazine of Western History for 
April, 1886. 



Kentucky Resolutions of lygS. 137 

memory of my father, I should feel an insuperable 
reluctance to trouble you with this letter. A very 
brief narrative will explain its object. 

In the Richmond Enquirer of September 4th, in 
an editorial stricture on certain articles that had 
appeared in the National Intelligencer^ the writer, 
in support of his principles, refers to the authority 
of your name and opinions, and expresses himself 
in the following words : '"'' We protested against the 
* putting Mr. J. forward as the chief of a new party,' 
and that the doctrines we held on the great ques- 
tion of supremacy in cases of collision between the 
governments was the doctrine of the old Republican 
party, of Mr. Madison's report of '98, and of the 
Kentucky resolutions penned by Mr. Jefferson 
himself." Well knowing that the resolutions here 
alluded to were introduced into the legisla.ture of 
Kentucky by my father as his own production, I 
was greatly astonished by the assertion of the editor. 
Convinced as I am that the mover of the resolu- 
tions would not have consented thus to appropriate 
the labor even of his illustrious friend, I did believe 
the assertion to be untrue. 

To a man the measure of whose fame and useful- 
ness is full, an occurrence like the present may be 
regarded with indifference. But when you remem- 
ber that the providence of God arrested at an early 
period the auspicious career of him whose loss I 
have cause so deeply to deplore, you will excuse — 
nay, approve — the sensibility which I feel on every 
subject connected with his just [fame]. If I am 
not deceived in the temper of the times, the day is 
at hand when the struggle of '98 is to be renewed 
with decisive characteristics of consolidating intent, 
and these States are to maintain a second contest 
for the purity and extent of their ancient rights. 
At such a crisis, involving the safety and perpetuity 
of some of the most sacred principles of American 
freedom, the recollection of similar events — the 



138 The Authorship of the 

corresponding sentiments and acts of departed pa- 
triots — will be reviewed with peculiar interest and 
powerful effect, and I can distinctly perceive the 
value of your written declaration to insure justice 
to the memory of one, whom loving, you largely 
contributed to exalt. Believing that I cannot give 
a better evidence of the sincerity and respect of the 
present application than by omitting all formal and 
affected apologies for having made it, I hasten to 
assure you of my high consideration, and to offer 
you my sincerest v/ishes for your continued health 
and happiness. J. Cabell Breckinridge. 

To this letter Mr. Jefferson sent the following 
reply : 

MoNTiCELLO, December ii, 1821. 
Dear Sir : — Your letter of December 19th 
places me under a dilemma which I cannot solve 
but by an exposition of the naked truth. I would 
have wished this rather to have remained, as hith- 
erto, without inquiry, but your inquiries have a 
right to be answered. I will do it as exactly as the 
great lapse of time and a waning memory will 
enable me. I may misremember indifferent cir- 
cumstances, but can be right in substance. At the 
time when the Republicans of our country were so 
much alarmed at the proceedings of the Federal 
ascendancy in Congress in the Executive and the' 
Judiciary departments, it became a matter of seri- 
ous consideration how head could be made againbt 
their enterprises on the Constitution. The leading 
republicans in Congress found themselves of no 
use there, browbeaten as they were by a bold and 
overwhelming majority. They concluded to retire 
from that field, take a stand in their state legisla- 
tures, and endeavor there to arrest their progress. 
The Alien and Sedition laws furnished the particu- 
lar occasion. The sympathy between Virgir-'a and 



Kentucky ResolMtions of ijg8. 139 

Kentucky was more cordial and more intimately 
confidential than between any other two States of 
republican policy. Mr. Madison came into the 
Virginia legislature. I was then in the Vice-presi- 
dency, and could not leave my station ; but your 
father, Colonel W. C. Nicholas, and myself, hap- 
pening to be together, the engaging the co-opera- 
tion of Kentucky in an energetic protestation 
against the constitutionality of those laws became 
a subject of consultation. Those gentlemen pressed 
me strongly to sketch resolutions for that purpose, 
your father undertaking to introduce them to that 
legislature, with a solemn assurance, which I strictly 
required, that it should not be known from what 
quarter they came. I drew and delivered them to 
him, and in keeping their origin secret he fulfilled 
his pledge of honor. Some years after this. Colonel 
Nicholas asked me if I would have any objection 
to it being known that I had drawn them. I point- 
edly enjoined that it should not. Whether he had 
unguardedly intimated before to any one I know 
not, but I afterwards observed in the papers re- 
peated imputations of them to me, on which, as has 
been my practice on all occasions of imputation, I 
have observed entire silence. The question, in- 
deed, has never before been put to me, nor should 
I answer it to any other than yourself, seeing no 
good end to be proposed by it, and the desire of 
tranquillity inducing with me a wish to be with- 
drawn from public notice. Your father's zeal and 
talents were too well known to desire any additional 
distinction from the penning these resolutions. 
That circumstance surely was of far less merit than 
the proposing and carrying them through the legis- 
lature of his state. The only fact in this statement 
on which my memory is not distinct, is the time 
and occasion of the consultation with your father 
and Mr. Nicholas. It took place here I know, but 
whether any other person was present or commu- 



140 The Authorship of the 

nicated with is my doubt. I think Mr. Madison 
was either with us or consulted, but my memory is 
uncertain as to minor details. I fear, dear sir, we 
are now in such another crisis, with this difference 
only, that the judiciary branch is alone and single- 
handed in the present assaults on the Constitution ; ' 
but its assaults are more sure and deadly, as from 
an agent^eemingly passive and unassuming. May 
you and your contemporaries meet them with the 
same determination and effect as your father and 
his did the " alien and sedition " laws, and preserve 
inviolate a constitution which, cherished in all its 
chastity and purity, will prove in the end a bless- 
ing to all the nations of the earth. With these 
prayers, accept those for your own happiness and 
.prosperity. Th. Jefferson. 

This letter is now among the Breckinridge papers 
in the possession of Hon. Wm. C. P. Breckinridge 
of Lexington, Kentucky. It is written upon a 
single sheet, folded, and bears upon the outside the 
address, " J. Cabell Breckinridge, Frankfort, Ken- 
tucky," together with Mr. Jefferson's "frank" and 
the Charlottesville post-mark; and on the reverse side 
may still be seen the traces of the wafer which was 
used to seal it. It is written throughout in Mr. 
Jefferson's well known and characteristic hand. 
From this, the original letter, the foregoing copy 
was made. In the Jefferson papers at Washington 
a copy of this letter is preserved, indexed " Dec. 
nth to J. Cabell Breckinridge," under the year 
182 1, and bearing the caption "Th. Jefferson to J. 
Cabell Breckinridge." ^ By some strange error, 

^ Letter of Miss S. N. Randolph : The Nation, May 5, 

1887. 



Kentucky Resolutions of I'/ g8, 141 

however, it appears in Jefferson's printed works as 

to " Nicholas, Esq." How this error arose has 

never been explained. It can only be conjectured 
that by some accident the editor had omitted the 
caption, and undertook to supply it when the 
manuscript itself was not at hand. To one who 
was acquainted with the intimate connection of 
the Nicholases with the affairs of Kentucky in '98 
and '99, and who had in close juxtaposition to this 
letter a number of letters to W. C. Nicholas on 
the general subject,* the inference that " your 
father " was George Nicholas, and that this letter 
had been addressed to one of his sons might have 
appeared little less than certain. Unless very con- 
versant with the history of the movement against 
the alien and sedition laws, he would not at once 
call to mind the name of Breckinridge ; for John 
Breckinridge had been dead many years, and his 
once famous name was almost forgotten. The facts 
in the case show beyond a shadow of a doubt that 
the letter was addressed to J. Cabell Breckinridge, 
and, although this was at one time a matter of 
some doubt, Mr. Jefferson's papers so credit it. 

Therefore the " Nicholas, Esq." caption must 

have sprung from pure conjecture.'* 

Though, like many other things founded on 
fancy and not on fact, the editor's conclusion was 
wrong, that did not prevent its gaining credence, 
even Mr. Madison being misled by it in later 

^ See the order of these letters in Jefferson's published 
works. 

' The Nation^ May 5, 1887, article by Miss Sarah Nicholas 
Randolph : " New Light on the Resolutions of 1798." 



142 The Authorship of the 

years. But the most remarkable fact connected 
with this error is that some of the descendants 
of George Nicholas, being themselves persuaded 
by the apparent evidence offered by Mr. Jeffer- 
son's printed works, claimed for him the part 
that was really played by Mr. Breckinridge, in 
the face of the most convincing proof to the con- 
trary. For it must be remembered that, however 
much the true state of the case was lost sight of 
elsewhere, and whatever errors crept into the most 
reliable histories, in Kentucky it never ceased to be 
known and remembered that Mr. Breckinridge was 
the chief mover in this matter. There is no ques- 
tion that the Nicholases were perfectly honest in all 
that they said and wrote, nor is there any doubt 
that so long as he lived George Nicholas shared 
the inmost counsels of the actors in this little 
drama. But they seem to have acted under 
a mistaken zeal for what they fancied were the 
rights of their great and long-deceased kinsman, 
and upon convictions which, though sincere, were 
not according to knowledge. It was first claimed 

that the *' Nicholas " letter was written to 

Samuel Smith Nicholas, one of the sons of George 
Nicholas. This claim was made in an obituary 
notice of Samuel S. Nicholas, in the Cincinnati 
Commoner^ towards the end of 1869. In January, 
1870, Judge Richard Hawes, the husband of the 
youngest daughter of George Nicholas, in a lengthy 
communication to the same journal,'* denied that 

' The Cincinnati Commmter, December, 1869. 

^ Ibid.^ January. 1870. I am indebted to Col. R. T. 
Durrett for a MS. copy of this letter, as I have been unable 
to find a file of this journal. 



Kentticky Resolutions of lygS. 1 43 

statement, and gave what was then the theory of 
the Nicholas family upon this point. He asserted 
that Nelson Nicholas, an elder brother of Samuel 
S. Nicholas, had been educated by his uncle, Wilson 
Carey Nicholas ; and that while he was an inmate 
of his uncle's house, he had heard from him that 
Jefferson had drawn the great Resolutions ; and that 
as executor of his father, George Nicholas, he 
had come into possession of a letter from Mr. 
Jefferson to his father, enclosing the Resolutions 
and asking that, as he was not a member of the 
Kentucky legislature, he would entrust them to 
some reliable member for presentation to that body. 
Judge Hawes claimed further that to Nelson 

Nicholas had been written the " Nicholas *' 

letter, and that he (Judge Hawes) had himself seen 
it. The letters were said to have been lost. The 
statement that the Nicholas papers contained a letter 
from Jefferson to George Nicholas, asking him to 
get some trustworthy member of the legislature to 
introduce a series of Resolutions enclosed, was also 
made by Judge Hawes as early as 1833, in a letter 
to the editors of The National Intelligencer^ of 
Washington, D. C.' 

These claims are exceedingly difficult to deal 
with. No one can impeach the honesty with which 
they were made. But the letters have utterly per- 
ished, and the remaining evidence appears to dis- 
credit the claims, and to suggest that there must be 
some mistake in Judge Hawes' account. 

' This letter is now in the possession of Pres. James C. 
Welling, of Columbian University, Washington, D. C, to 
whom I am indebted for a copy. 



144 ^^^^ Authorship of the 

The letters of Mr. Breckinridge and Mr. Jeffer- 
son, and the whole chain of events connected with 
them, the motives and the allusions in them, are all 
so entirely supported by contemporaneous history, 
that they seem to put the matter on a sound basis. 
Judge Hawes' letter, on the other hand, is wanting 
in accuracy, both on important matters and in 
details. Nelson Nicholas may have had a copy of 
the letter to Mr. Breckinridge, which, as it bore on 
its face no evidence of the person to whom it was 
addressed, and the address on the back would not 
unnaturally be omitted, might well have been mis- 
leading. If Mr. Jefferson's editor committed this 
error, Judge Hawes would have far greater excuse 
for repeating it. The existence of the other letter 
seems to be even more clearly refuted by the facts 
hereafter to be detailed. It must ever be regretted 
that any cause of controversy should have arisen 
between the descendants of men who loved each 
other so well, and in life knew no difference of senti- 
ment ; and the misapprehensions which have given 
rise to the dispute and controversy over these 
matters, were most unfortunate. 

Thus Mr. Jefferson's letter, which it was so con- 
fidently believed would forever vindicate Mr. 
Breckinridge's title to the authorship of the Resolu- 
tions of 1798, led incidentally to a controversy 
which did much towards taking from him the entire 
credit, both as author and advocate. The state- 
ments in this letter in regard to the draughting of 
the resolutions, moreover, seemed to deny what 
Mr. Breckinridge's friends had always claimed for 



Kentucky Resolutions of lygS. 145 

him — namely, that he was the author of the resolu- 
tions, and these statements were received by them 
with great bitterness of spirit, and they maintained, 
and still maintain, that upon a full investigation of 
all the facts, it is true, notwithstanding Mr. Jeffer- 
son's declarations, that he was the responsible au- 
thor. The Nicholases, too, have taken issue with 
the statements of this letter, claiming that it does 
not do justice to Colonel Wilson Carey Nicholas' 
part in the movement. Hence a controversy has 
arisen, compared to which that occasioned by the 
error of the editor of Mr. Jefferson's works was 
as nothing. Almost every fact stated by Mr. Jeffer- 
son in the letter has been questioned, and almost 
every position controverted. Mr. Breckinridge's 
friends have assailed Mr. Jefferson's claim that he 
wrote the resolutions ; the Nicholases have gone 
further, and have argued ' that Jefferson's own 
letters indicate that the m-atter was brought to his 
notice, that the project was formed and the plans 
perfected, by Colonel Nicholas, who only sought the 
advice and approval of the Vice-President, and have 
denied that the alleged " conference " ever occurred, 
upon the ground of certain inferences from their 
correspondence at the time. There are undoubted 
lapses of memory in this letter, such as the giving 
of the date of the letter replied to as Dec. 19th, 
instead of Nov. 19th, and the anticipation of Mr. 
Madison's election to the Virginia legislature by a 

^ The Nation, May 5 and June 2, 1887. " New Light on 
the Resolutions of 1798." Miss Randolph, and reply by E. D. 
Warfield. 



246 The Authoi^ship of the 

year ; and these are referred to and dwelt upon as 
evidences of the feebleness of Mr, Jefferson's mem- 
ory at the time of writing it. The facts, so far as 
known, however, do not make a very clear case, 
either for the one side or the other ; but, as they 
are in themselves interesting and important, they 
will be set forth in outline before any attempt to 
state a conclusion is made. 

Upon the adjournment of Congress in mid-sum- 
mer, 1798, the Vice-President returned to Monti- 
cello. Mr, Breckinridge, after taking an active part 
in directing the outcries against the odious acts of 
Congress late in July and early in August, set out 
soon after on a visit to his old home in Virginia. 
The record of his doings, as recorded in his letters 
that have been preserved, is lamentably small. It 
is certainly known that he saw John Nicholas and 
Wilson Carey Nicholas ; that he saw Jefferson, with 
whom he had been on such intimate terms, is hardly 
open to question, since he was at Charlottesville 
when Mr. Jefferson was at Monticello. It is not 
until October that the letters now extant begin to 
substitute solid facts for the misty forms of the 
realms of conjecture. The first letter is from Jef- 
ferson to W. C. Nicholas, and in it he says : " I 
entirely approve of the confidence you have reposed 
in Mr. Breckinridge, as he possesses mine entirely. 
I had imagined it better these resolutions should 
have originated with North Carolina, but perhaps 
the late changes in their representation may indi- 
cate some doubt whether they would have passed. 
In that case it is better they should come from 



Kentucky Resolutions of iyp8, 147 

Kentucky. I understand you intend soon to go as 
far as Mr. Madison's. You know I have no secrets 
for him. I wish him, therefore, to be consulted as 
to these resolutions." The next letter, from W. C. 
Nicholas to John Breckinridge, bearing date five 
days later, October 10, 1798, communicates the 
contents of the foregoing letter, and also some fur- 
ther matter derived from Jefferson in another letter 
or a personal conference. Says Colonel Nicholas : 
" I have had a letter from our friend. He approves 
what I have done. He says you possess his confi- 
dence entirely — that he thinks the business had 
better commence in your State. He regrets that 
he missed the visit that you and your brother in- 
tended him, though he is sensible of the delicacy 
and motives of the omission. He suggests nothing 
further upon the subject ; indeed, I think that 
every thing is said that can be in the paper that 
you have. I shall be impatient to hear from you." 
The third letter is from Caleb Wallace, a member 
of the Kentucky legislature, and written from Lex- 
ington, Ky., under date of November 5th, to John 
Breckinridge, at Frankfort, whither he had thus 
early gone to prepare for the coming campaign. It 
is evident that the letter to which it is an answer 
could not have been written later than the early 
part of October.' After congratulating him on his 
return to Kentucky, Mr. Wallace goes on to say : ^ 
" The letter which you sent me from Botetourt 

^ The Nation, May 5, 1787. 

2 The Nation, June 2, 1887. 

3 The Breckinridge papers, MS. 



148 The Authorship of the 

lay in one of my neighbor's houses two or three 
weeks, so that I did not receive it until a few days 
ago ^ so that I have not had time to pay attention 
to the request made in your letter ; indeed, I do 
not think myself capable of draughting any thing of 
so great importance. I think that the main points 
to which the legislature ought to attend are the 
Alien and the Sedition laws, and the laws respecting 
raising regulars and volunteers — all of which are 
certainly unconstitutional in the most dangerous 
instances ; the first affecting the trial by jury, the 
second the freedom of the press — the two great 
pall^^^iums of liberty. But I think theT^^sfTFThe 
most highly dangerous, because if in the present 
instances the Executive does not abuse the powers 
with which Congress has invested him, it will be- 
come a popular precedent for giving the same 
powers on some future occasion. I feel great 
anxiety that the conduct of our legislature should 
be firm, spirited, and constitutional." 

From these letters it appears that the little group 
mentioned in Mr. Jefferson's letter — himself. Col. 
W. C. Nicholas, John Breckinridge, and Mr. Madi- 
son, were all more or less intimately connected with 
the plan for introducing a protest against the alien 
and sedition laws into the Kentucky legislature. 
It further appears that Mr. Jefferson had at first 
desired to have the protest come from North Caro- 
lina, but had been overruled in this in favor of 
Kentucky ; and on Oct. 5th concedes to the power 
that overruled him, whatever it was, its wisdom, 
since the autumnal election returns evidenced a 



Kentucky Resolutions of lygS, 1 49 

change of opinion in North Carolina, which ren- 
dered it doubtful if the resolutions could be gotten 
through that legislature. The " entire confidence " 
in regard to the matter under discussion, moreover, 
points to an intimate knowledge of each other's 
views, — to a knowledge, so intimate, indeed, that it 
could scarcely have sprung from any thing less that 
a full discussion face to face ; while the allusion to 
a prevented visit of Mr. Breckinridge's, which at 
first sight might seem to indicate that he had not 
seen Mr. Jefferson at all, on reflection seems rather 
to indicate that " the delicacy and motives for its 
omission " were nothing else than an adoption of 
Mr. Jefferson's well known caution, and an un- 
willingness to appear so frequently at Monticello, 
lest when he should bring forward the resolutions 
in November, men should at once recall his fre- 
quent visits and connect the Vice-President with 
the anti-administration action of Kentucky. The 
visit omitted, too, could only have been of the most 
formal kind, for, as has already been mentioned, 
James Breckinridge, the brother of John Breckin- 
ridge alluded to, was a strong Federalist, and was 
destined soon after to lead the opposition to the 
Virginia Resolutions. 

All of these facts and circumstances point so 
strongly towards a consultation of at least Jefferson, 
Nicholas, and Breckinridge on the subject of resolu- 
tions protesting against the laws of the late Con- 
gress, that Mr. Jefferson's testimony that such a 
consultation took place is powerfully corroborated. 
The cause of the original abandonment of North 



150 The Authorship of the 

Carolina in favor of Kentucky as the first tourney- 
field cannot be so well explained, moreover, by any 
other hypothesis than that after it had taken form 
Mr. Breckinridge appeared fresh from ardent Ken- 
tucky mass-meetings, full of the idea of a legislative 
protest, and eager to try his youthful prowess in his 
own State in a cause so enthusiastically popular ; 
and that he carried his point, and won for Ken- 
tucky the privilege of opening the first great ques- 
tion of constitutional construction. 

It is very .hard to see how all this evidence of a 
consultation is to be set aside in favor of any other 
theory. It has been sharply assailed, and the evi- 
dence for it keenly criticised. A very ingenious 
theory advanced by Miss Sarah Nicholas Ran- 
dolph,^ a descendant of both Col. Nicholas and Mr. 
Jefferson, suggests that no such meeting ever took 
place, but that this supposed meeting was the out- 
growth in Mr. Jefferson's failing memory of the 
reminiscences of the meeting which he proposed 
in his letters of August,^ 1799? to Colonel Nicholas 
that they should hold, together with Mr. Madison, 
with regard to the appropriate action for Kentucky 
to take in the ensuing autumn session of its legisla- 
ture. This meeting did not take place, owing to 
Colonel Nicholas' early departure for Kentucky to 
settle the affairs of George Nicholas, then recently 
dead. This theory is far too tenuous. No memory 
once robust can be thought thus to have confused 
a supposed and a proposed meeting, when on the 
former hung the deepest things of statecraft. And 

^ The Nation, May 5, 1887. ^ Jefferson's Works, vol. iv. 



Kentucky Resolutions of lygS, 151 

Mr. Jefferson's memory was robust, in the main, 
till the end. But even more true is it that, however 
men may forget the details of any event, the ante- 
cedents, the attendant circumstances, the order 
of events, and the words that were spoken, they 
hold fast to the event itself. And this consulta- 
tion was important in itself, and of ever growing 
importance in its results. The logic of events, 
no less than the logic of thought, is against this 
theory, and the laws of evidence, also, allow to Mr. 
Jefferson's direct evidence on the actual happening 
of the conference a weight that only a highly 
probable chain of circumstantial evidence could 
overcome. 

Mr. Jefferson says that Nicholas and Breckin- 
ridge pressed him to sketch resolutions to be intro- 
duced into the Kentucky legislature, and that he 
" drew and delivered " them to Mr. Breckinridge. 
What, then, were the resolutions thus drawn ? 
Were they the ones introduced by Mr. Breckin- 
ridge and passed by the legislature of Kentucky ? 
The unnegatived inference is, of course, that they 
were, but there is reason to believe that they were 
not. 

After Mr. Jefferson's death no copy of the Ken- 
tucky Resolutions as passed was found among his 
papers, which, in view of the extraordinary care he 
gave to the preservation of important papers, is 
quite remarkable. But there was found a draught 
of certain resolutions in some respects very like the 
Kentucky Resolutions, and in others very dissimilar. 
"Two copies of these resolutions are preserved 



152 The Author sJiip of the 

among the manuscripts [of Mr. Jefferson], both in 
his own handwriting. One is a rough draught, and 
the other very neatly and carefully prepared." * 
These resolutions have generally been spoken of 
as the " Jefferson draught," in contradistinction to 
the Kentucky Resolutions actually adopted, and in 
order that the two forms may be compared, these 
resolutions are here reproduced in a foot-note.' 
It will be observed that this draught differs from 
the true Kentucky Resolutions ^ in a number of 

' Jefferson's Works. Edition 1856, p. 464, vol. ix. Note 
by editor. ' See page 75, ante. 

2 The Jefferson Resolutions. 

1st. Resolved, That the several States composing the United 
States of America are not united on the principle of the un- 
limited submission to the General Government ; but that by 
a compact under the style and title of a Constitution for the 
United States, and of amendments thereto, they constituted a 
General Government for special purposes, delegated to that 
Government certain definite powers, reserving, each State to 
itself, the residuary mass of right to their own self-government, 
and that whensoever the General Government assumes undele- 
gated powers its acts are unauthoritative, void, and of no force ; 
that to this compact each State acceded as a State, and is an in- 
tegral party, its co-States forming as to itself the other party ; 
that the Government created by this compact was not made 
the exclusive or final judge of the extent of the powers dele- 
gated to itself ; since that would have made its discretion, 
and not the Constitution, the measure of its powers ; but that, 
as in all other cases of compact among powers having no 
common judge, each party has an equal right to judge for 
itself, as well of infractions as of the mode and measure of re- 
dress. 

2d. Resolved, That the Constitution of the United States 
having delegated to Congress a power to punish treason, 
counterfeiting the securities and current coin of the United 
States, piracies and felonies committed on the high seas, and 
offences against the laws of nations, and no other crimes what- 
sover, and it being true as a general principle, and one of the 
amendments of the Constitution having also declared, that 
"the powers not delegated to the United States by the Con- 
stitution, nor prohibited by it to the States, are reserved to 



Kentucky Resolutions of ly^S. 153 

minor points in the first seven resolutions, only one 
or two of these alterations being of any material 
significance, but in the eighth and ninth resolutions 

the States respectively, or the people " ; therefore the act of 
Congress, passed on the 14th July, 1798, and entitled "An act 
in addition to the act entitled an act for the punishment of 
certain crimes against the United States " ; as also the act 
passed by them on the — day of June, 1 798, entitled " An act 
to punish frauds committed on the Bank of the United 
States," (and all other thtir acts which assume to create, 
define, or punish crimes other than those so enumerated in 
the Constitution,) are altogether void and of no force, and that 
the power to create, define, and punish such other crimes is 
reserved, and of right appertains solely and exclusively to 
the respective States, each within its own territory. 

3d. Resolved, That it is true as a general principle and 
is also expressly declared, by one of the amendments to the 
Constitution, that the powers not delegated to the United 
States by the Constitution, nor prohibited by it to the States, 
were reserved to the States respectively, or to the people ; 
and that no power over the freedom of religion, freedom of 
speech, or freedom of the press being delegated to the 
United States, by the Constitution, nor prohibited by it to 
the States, all lawful powers respecting the same did of right 
remain, and were reserved to the States or the people ; that 
thus was manifested their determination to retain themselves 
the right of judging how far the licentiousness of speech and 
of the press may be abridged without lessening their useful 
freedom, and how far those abuses which cannot be separated 
from their use should be tolerated, rather than the use be de- 
stroyed ; and thus also they guarded against all abridgment 
by the United States of the freedom of religious opinions and 
exercises, and retained to themselves the right of protecting 
the same ; as this State, by law passed on the general demand 
of its citizens, had already protected them from all human 
restraints or interference, and that in addition to this general 
principle and express declaration, another and more special 
provision has been made by one of the amendments to the 
Constitution, which expressly declares that " Congress shall 
make no law respecting an establishment of religion, or pro- 
hibiting the free exercise thereof, or abridging the freedom of 
speech or of the press ; " thereby guarding in the same sen- 
tence and under the same words the freedom of religion, of 
speech, and of the press ; insomuch that whatever violates 
either, throws down the sanctuary which covers the others, 



154 The A uthorship of the 

there is the most radical difference. The eighth in 
the Jefferson draught is long and declamatory, while 
the ninth is a short directory clause, providing that 

and that libels, falsehood, and defamation, equally with heresy 
and false religion, are withheld from the cognizance of federal 
tribunals, that therefore the act of Congress of the United 
States, passed on the 14th day of July, 1798, entitled "An 
act in addition to an act entitled an act for the punishment 
of certain crimes against the United States," which does 
abridge the freedom of the press, is not law, but is altogether 
void and of no force. 

4th. Resolved, That alien friends are under the jurisdiction 
and protection of the lav/s of the State wherein they are ; that 
no power over them has been delegated to the United States ; 
nor prohibited to the individual States, distinct from their 
power over citizens ; and it being true as a general principle, 
and one of the amendments to the Constitution having also 
declared, that " the pov/ers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are re- 
served to the States respectively, or to the people," the act of 
the Congress of the United Stares, passed on the — day of 
July, 1798, entitled " An act concerning aliens," which as- 
sumes powers over alien friends not delegated by the Consti- 
tution, is not law, but is altogether void and of no force. 

5th. Resolved, That, in addition to the general principle, 
as well as the express declaration, that powers not delegated 
are reserved, another and more special provision, inserted in 
the Constitution from abundant caution, has declared that 
" the migration or importation of such persons as any of the 
States now existing shall think proper to admit, shall not be 
prohibited by the Congress prior to the year 1808 ; " that this 
commonwealth does admit the emigration of alien friends, de- 
scribed as the subjects of the said act concerning aliens ; that 
a provision against prohibiting their migration, is a provision 
against all acts equivalent thereto, as it would be nugatory ; 
that, to remove them when emigrated, is equivalent to a pro- 
hibition of their migration ; and is, therefore, contrary to the 
said provision of the Constitution and void. 

6th. Resolved, That the imprisonment of a person under 
the protection of the laws of this commonwealth, on his fail- 
ure to obey the simple order of the President to depart out of 
the United States, as is undertaken by the said act, entitled 
" An act concerning aliens," is contrary to the Constitution, 
one amendment of which has provided that ' ' no person shall 
be deprived of liberty without due process of law ; " and that. 



Kentucky Resolutio7ts of iy^8, 155 

a committee created by the eighth should hold 
certain communications and report at the next 
session of the legislature ; while the eighth in the 

another having provided that, ' ' in all criminal prosecutions 
the accused shall enjoy the right to a public trial by an im- 
partial jury, to be informed of the nature and cause of the 
accusation, to be confronted with the witnesses against him, 
to have compulsory process for obtaining witnesses in his 
favor, and to have assistance of counsel for his defence," 
the same act, undertaking to authorize the President of the 
United States to remove a person of the United States who is 
under the protection of the law, on his own suspicion, without 
accusation, without jury, without pubhc trial, without 
confrontation of the witnesses against him, without hearing 
witnesses in his favor, without defence, without counsel, is 
contrary to these provisions, also, of the Constitution ; is, 
therefore, not law, but utterly void and of no force ; that, 
transferring the power of judging any person, who is under 
the protection of the law, from the courts to the President of 
the United States, as is undertaken by the same act concerning 
aliens, is against the article of the Constitution which pro- 
vides that " the judicial power of the United States shall be 
vested in courts, the judges of which shall hold their offices 
under good behavior" ; and that the said act is void for that 
reason also ; and it is further to be noted that, this transfer of 
judiciary power is to that magistrate of the General Govern- 
ment who already possesses all the executive, and a negative, 
on all the legislative, powers. 

7th. Resolved, That the construction applied by the Gen- 
eral Government (as is evidenced by sundry of their proceed- 
ings) to those parts of the Constitution of the United States, 
which delegate to Congress a power ' ' To lay and collect 
taxes, duties, imposts, and excises, to pay the debts and pro- 
vide for the common defence and general welfare of the 
United States, and to make all laws which shall be necessary 
and proper for carrying into execution the powers vested by 
the Constitution in the Government of the United States, or 
in any department or offices thereof," goes to the destruction 
of all the limits prescribed to their power by the Constitution ; 
that words meant by that instrument to be subsidiary only to 
the execution of limited powers, ought not to be so construed 
as themselves to give unlimited powers, nor a part to be so 
taken as to destroy the whole residue of that instrument ; 
that the proceedings of the General Government under color 
of these articles, will be a fit and necessary subject of revisal 



156 The Attthorship of the 

Kentucky Resolutions is a directory clause totally 

unlike the ninth of the other paper, and the ninth 

is the eighth of the other much reduced and greatly 

shorn of its declamation and verbiage. 

and correction, at a time of greater tranquillity, while those 
specified in the preceding resolutions call for immediate re- 
dress. 

8th. Resolved, That a Committee of Conference and Cor- 
respondence be appointed, who shall have in charge to 'com- 
municate the preceding resolutions to the legislature of the 
several States ; to assure them that this commonwealth con- 
tinues in the same esteem for their friendship and union 
which it has manifested from that moment at which a common 
danger first suggested a common union ; that it considers 
union, for specified national purposes, and particularly for 
those specified in their late federal compact, to be friendly to 
the peace, happiness, and prosperity of all the States ; that, 
faithful to that compact, according to the plain intent and 
meaning in which it was understood and acceded to by the 
several parties, it is sincerely anxious for its preservation ; 
that it does also believe that to take from the States all the 
powers of self-government and transfer them to a general 
and consolidated government, without regard to the special 
delegations and reservations solemnly agreed to in that com- 
pact, is not for the peace, happiness, or prosperity of these 
States ; and that, therefore, this commonwealth is determined, 
as it doubts not its co-States are, to submit to undelegated, 
and consequently unlimited powers in no man or body of 
men, on earth ; that in cases of an abuse of the delegated 
powers, the members of the General Government being 
chosen by the people, a change by the people would be the 
constitutional remedy ; but where powers are assumed which 
have not been delegated, a nullification of the act is the right 
remedy ; that every State has a natural right in cases not 
within the compact {casus non foederis), to nullify of their 
own authority all assumptions of power by others within their 
limits ; that without this right they would be under the 
dominion, absolute and unlimited, of whatsoever might exer- 
cise this right of judgment for them ; that, nevertheless this 
commonwealth, from motives of regard and respect for its co- 
States, has wished to communicate with them on the subject ; 
that with them alone it is proper to communicate, they alone 
being parties to the compact, and solely authorized to judge 
in the last resort of the powers exercised under it, Congress 
being not a party, but merely the creature of the compact, 



Kenhicky Resolutions of lygS. 157 

The chief significance of these changes lies in 
the alteration in the directory clause. The Jeffer- 
son draught's ninth resolution is an ordinary direc- 
tory clause pointing out in what manner the com- 

and subject, as to its assumption of power, to the final judg- 
ment of those by whom, and for whose use, itself and its 
powers were all created and modified ; that, if the act before 
specified should stand, these conclusions would flow from 
them, that the General Government may place any act they 
think proper on the list of crimes, and punish it themselves, 
whether enumerated or not enumerated by the Constitution 
as cognizable by them ; that they may transfer its cognizance 
to the President, or any other person, who may himself be 
the accuser, counsel, judge, and jury, whose suspicions may 
be the evidence, his order the sentence, his officer the execu- 
tioner, and his breast the sole record of the transactions ; 
that a very numerous and valuable description of the inhabi- 
tants of these States being, by this precedent, reduced as out- 
laws to the absolute dominion of one man, and the barrier of 
the Constitution thus swept away for us all, no rampart now 
remains against the passions, and the power of a majority in 
Congress to protect from a like exportation, or other more 
grievous punishment, the minority of the same body, the 
legislatures, judges, governors, and counsellors of the 
States, nor their other peaceable inhabitants, who 
may venture to reclaim the constitutional rights and 
liberties of the States and people, or who for other 
causes, good or bad, may be obnoxious to the views, 
or marked by the suspicion of the President or be 
thought dangerous to his or their elections, or other interests, 
public or personal ; that the friendless alien has indeed been 
selected as the safest subject of a first experiment, but the 
citizen will soon follow ; rather, has already followed ; for 
already has a sedition act marked him as its prey ; that these 
and successive acts of the same character, unless arrested at 
the threshold, necessarily drive these States into revolution and 
blood, and will furnish new calumnies against republican gov- 
ernments, and new pretexts for those who wish it to be believed 
that man cannot be governed but by a rod of iron ; that it 
would be a dangerous delusion were a confidence in the men 
of our choice to silence our fears for the safety of our rights ; 
that confidence is everywhere the parent of despotism. Free 
government is founded in jealousy, and not in confidence ; it 
is jealousy, and not confidence, which prescribes limited con- 
stitutions, to bind down those whom we are obliged to trust 



158 The Authorship of the 

mittee appointed in the preceding resolution should 
proceed. The Kentucky Resolutions moving up 
the short resolution to the eighth place make it 
merely an order for the transmission of the Resolu- 
tions to the Congressmen of the State, with instruc- 
tions to press for a repeal of the " obnoxious acts," 
while in the ninth, instead of appointing a special 
committee, they authorize the governor to communi- 
cate the Resolutions to the other legislatures. In 
view of the fact that there was serious doubt among 
the Virginia statesmen whether the power to act in 
the premises was embraced in the ordinary powers 

with power ; that our Constitution has accordingly fixed the 
limits to which, and no further, our confidence may go. And 
let the honest advocate of confidence read the Alien and Sedi- 
tion acts, and say if the Constitution has not been wise in fix- 
ing limits to the government it created, and whether we 
should be wise in destroying those limits. Let him say what 
the government is, if it be not a tyranny, which the men of 
our choice have conferred on our President, and the President 
of our choice has assented to and accepted, over the friendly 
strangers to whom the mild spirit of our country and its laws 
had pledged hospitality and protection ; that the men of our 
choice have more respected the bare suspicions of the Presi- 
dent, than the solid rights of innocence, the claims of justifi- 
cation, the sacred force of truth, and the forms and substance 
of law and justice ; in questions of power, then, let no more 
be heard of confidence in man, but bind him down from mis- 
chief by the chains of the Constitution ; that this common- 
wealth does, therefore, call on its co-States for an expression 
of their sentiments on the acts concerning aliens, and for the 
punishment of certain crimes hereinbefore specified ; plainly 
declaring whether these acts are, or are not, authorized by the 
Federal compact. 

And it doubts not that their sense will be so enounced as 
to prove their attachment unaltered to limited government, 
whether general or particular ; and that the rights and liber- 
ties of their co-States will be exposed to no dangers by re- 
maining embarked in a common bottom with their own ; that 
they will concur with this commonwealth in considering the 
said acts as so palpably against the Constitution as to amount 



Kentucky Resolutioiis of ijg8. 159 

of the State, or was extraordinary, and to be re- 
garded only as lodged in a " sovereign convention," 
such as originally adopted the Constitution, or 
could be somehow found in a somewhat ill-defined 
middle ground, such as the Jefferson draught seems 
to have been intended to occupy, this change be. 
comes somewhat important. Mr. Madison had very 
grave doubts upon this subject, and freely expressed 
them. Mr. Breckinridge, however, had no such 
doubts, but was decided in his belief that the regu- 
lar constituted authorities of the State were ade- 
quate to the emergency. Hence a change of this 

to an undisguised declaration that that compact is not meant 
to be the measure of the powers of the General Government ; 
but that it will proceed in the exercise over these States of all 
powers whatsoever ; that they will view this as seizing the 
rights of the States, and consolidating them in the hands of 
the general government, with a power assumed to bind the 
States (not merely in the cases made federal \casus fcederis], 
but in all cases whatsoever), by laws made, not with their 
consent, but by others against their consent ; that this would 
be to surrender the fonn of government we have chosen, and 
to live under one deriving its powers from its own will and 
not from our authority ; and that the co-States recurring to 
their natural right, in cases not made federal, will concur in 
declaring these acts void and of no force, and will each take 
measures of its own for providing that neither these acts, nor 
any others of the general government, not plainly and inten- 
tionally authorized by the Constitution, shall be exercised 
within their respective territories. 

9th. Resolved, That the said committee be authorized 
to communicate, by writing or personal conferences, at any 
times or places whatever, with any person or persons who 
may be appointed by any one or more of the co-States to cor- 
respond or confer with them ; and that they lay their pro- 
ceedings before the next session of assembly. 

Richmond, March 21, 1832, 

I have carefully compared this copy with the MSS. of these 
resolutions in the handwriting of Thomas Jefferson, and find 
it a correct and full copy. 

Th. Jefferson Randolph. 



i6o The Authorship of the 

kind under these circumstances might well have 
had some deeper significance than a mere ordering 
of the resolutions ; for if it was intended that this 
clause should be a mere direction for effectuating 
the provisions of the instrument, it was properly 
the last resolution ; but if the draughtsman intended 
to assert a principle and embody a point of politi- 
cal doctrine in it, then the logical sequence de- 
manded that it should precede the declamatory 
clause, which thereupon became the final resolve 
both logically and locally. Mr. Madison saw this, 
and adopted the former order, and declared his ob- 
jection to the latter. More notable, perhaps, but 
really less significant, is the omission out of the 
long declamatory resolution of the clauses in which 
the word " nullification " occurred. If in dropping 
these clauses any actual change of meaning had 
thereby been effected this would have been a most 
momentous alteration ; but as will be shown in the 
next chapter, though thereby verbally omitted, 
every expression necessary to convey any idea at 
that day included in the word nullification had al- 
ready been introduced into the paper by equivalent 
words and phrases. 

Two questions naturally suggest themselves ; for 
what purpose, and by v/hom, were the changes 
made ? In the first place, there is no known rea- 
son which could have dictated these changes, unless 
the preference on the part of Mr. Breckinridge for 
action by the ordinary State authorities, instead of 
an extraordinary committee, be such a reason. If 
made by him, they showed a freedom on his part, 



Kentucky Resolutions of lygS. 1 6 1 

which, coupled with his very late request to Caleb 
Wallace to " draw something," referred to in the 
letter quoted above ^ from Wallace to Breckin- 
ridge, would seem to indicate a very independent 
attitude on the part of that gentleman towards the 
resolutions as first drawn. To advance, then, to the 
question of who made the alterations, while it must 
be freely admitted that there is no direct evidence 
to be procured, the circumstantial evidence would 
seem to indicate that having consulted with the 
Virginia party-leaders Mr. Breckinridge brought 
back to Kentucky the Jefferson draught, and after 
further consideration, perhaps, after further con- 
sultation, for it has already been seen that he was 
on the field at Frankfort some time before the legis- 
lature met, he modified and re-ordered the resolu- 
tions according to his own best judgment, and in 
that form presented them to the House of Repre- 
sentatives. 

If this view be correct, and Mr. Breckinridge, 
after diligent preparation and after procuring vari- 
ous opinions from leading Republicans on the ac- 
tion to be taken, finally made use of a draught 
drawn probably by Mr, Jefferson, after consultation 
with Col. Nicholas and himself, as the basis of the 
resolutions introduced by him into the Kentucky 
legislature of 1798, his part would have been so 
dominant and so independent, that it would have 
been no exaggeration of his part for him to claim, or 
to acquiesce in the claims made so constantly for 
him, that he was the author of the resolves. Such 

^ Atite, page 147. 



1 62 The Authorship of the 

claims would have rested on a solid basis, and 
would not in any wise have run counter to that high 
sense of honor which he so rightly valued, and for 
which he was so deeply respected. This would be 
doubly true, if, having received aid from Mr. Jeffer- 
son only among others, and that under a strict in- 
junction of secrecy, he had not disclosed the 
comparatively minor part played by Mr. Jefferson 
in the affair. On the other hand, it is somewhat 
hard to reconcile the idea advanced by Mr., Jeffer- 
son's letter with the known character of Mr. Breck- 
inridge. Such a one might well have consented 
to bear the odium and abuse that came from the 
majority of the States for his chief, but it is difficult 
to believe that he could have sat in silence under 
the praise of his own State and of his comrades in 
the Republican ranks, and the adulation that was 
not uncommon elsewhere, when Jefferson became 
the beloved leader of a large part of the country. 

It is well to remark in this connection his inde- 
pendence of Mr. Jefferson, illustrated in his letter 
concerning the action of the following year. There 
he relates with the simplest and most straightfor- 
ward manner his intention of disregarding the 
advice, conveyed through Colonel Wilson Carey 
Nicholas, to reassert the principles enunciated in 
the Resolutions of '98 ; and he goes on to say 
that, moved not by this advice, but by a fear lest 
silence might be misconstrued into a change of 
sentiment, the legislature had finally decided to 
take action. This is thoroughly in accordance 
with his natural attitude, an even more decided 



Kenhicky Resolutions of lygS. 163 

exhibition of which he gave during his service in 
the United States Senate, when he resisted the 
President's desire — a desire which his correspond- 
ence shows haunted Mr. Jefferson's mind for a 
long time, and which he very freely and anxiously 
spoke of — to have an amendment to the Constitu- 
tion sanctioning the acquisition of Louisiana intro- 
duced into Congress. 

The controversy over the authorship of these 
resolutions owed its great interest less to its histori- 
cal than to its political bearings. The relation to 
the nullification movement, and the efforts of the 
party of nullification to fix the authorship on Mr. 
Jefferson, in its motives and results falls more 
properly in the next chapter. It is proper at this 
place, however, to point out this fact, and that the 
sharpness and continuance of the controversy was 
largely due to the desire to make the nullification 
of history a part of the Jeffersonian policy of de- 
mocracy in the United States. The problem has 
lost much of this, to a certain extent, adventitious 
interest, but as a historical problem it is yet among 
the most attractive to the student of American his- 
tory. The evidence is probably now all in ; the 
conclusion from that evidence alone remains to be 
made. As to that, men will differ, though it will, 
perhaps, not be far wrong if made in somewhat the 
following form : 

John Breckinridge was the responsible author of 
the Kentucky Resolutions of 1798. He formed the 
design of submitting such a series of resolutions to 
the Kentucky legislature, and sought and received 



164 The Authorship of the 

assistance in the preparation of a suitable draught 
from various persons, but especially from Thomas 
Jefferson, who had independently conceived a simi- 
lar design with regard to North Carolina, and prob- 
ably also Virginia. At a conference at Monticello, 
Mr. Breckinridge, Mr. Jefferson, and Colonel 
Nicholas outlined the policy to be pursued, and 
Mr. Jefferson, at the request of his companions, 
embodied it in a draught, which passed into Mr. 
Breckinridge's hands. This draught he made the 
basis of the paper he offered in the legislature, but 
he subjected it to ^\searching revision, in the course 
of which it was altered and modified in important 
respects, and to a very marked extent. All this was 
done upon his sole responsibility, and the document 
was offered as his, and, after a few verbal amend- 
ments, passed under his sponsorship. The senti- 
ments expressed were the common property of the 
whole party, similar utterances having proceeded 
from many informal assemblies, and the general 
course pursued was generally recommended in both 
Virginia and Kentucky ; but the execution of the 
plan in all its parts was in Mr. Breckinridge's hands, 
and though he used a draught largely composed 
by Mr. Jefferson, he used it as a private document, 
suggestive rather than final, and made alterations in 
it of so radical a nature as to show that he did 
not regard himself as a mere conduit, by which 
Mr. Jefferson was to have access to the Kentucky 
legislature, and that it did not occur to him that 
Mr. Jefferson so regarded him. In short, he was 
the master workman. Mr. Breckinridge was not 



Kentucky Resolutions of I yg8, i65 

then, the absolute, sole author of the Resolutions as 
a paper. Nor, on the other hand, was Mr. Jeffer- 
son. Nor, in the same sense, is the sculptor who 
moulds the clay, and puts the finishing touches 
on the marble, the sole maker of the statue : 
nevertheless, the marble-cutters who follow his 
directions are little more than mechanical appli- 
ances for reaching the artist's end. The design, 
and the finishing and perfecting, are more im- 
portant than the technical skill that is so essen- 
tial to success. Mr. Jefferson was the greatest 
master of his day in framing a state paper, and it 
does not detract from Mr. Breckinridge's judgment 
that, having formed the plan of the campaign of 
1798 in Kentucky, he sought this great craftsman's 
aid, and used his splendid powers in reaching his 
goal. And it speaks great things for his indepen- 
dence and self-confidence, that, having such a piece 
of work, he used such freedom in changing it to suit 
his own views and the observed wants of Kentucky. 



VII. 

THE DOCTRINES AND EFFECTS OF THE 
RESOL UTIONS, 

The Kentucky Resolutions of 1798 were of the 
nature of a political manifesto, and as such incurred 
a danger which frequently attaches to such fulmina- 
tions. They did not contemplate immediate action, 
and so wanted that restraint which the very nature 
of the case imposes upon all declarations which 
are intended to be acted on at once, or to be- 
come a rule of conduct. While they were meant 
to express the sentiments of the Kentucky people, 
they were also intended to invite cooperation and 
gauge the political feeling throughout the country. 
These circumstances did not invite a calm and 
equable statement of an exact and well-defined 
policy, nor a strict limitation of every expression 
to the measure of action for which the declar- 
ants were prepared. On the contrary every cir- 
cumstance seems to show that they were tempted 
to. go very far in bold declarations which they 
trusted they might never have to redeem in deeds. 
Thus their platform, for it was very like a party 
platform, naturally tended to present a maximum 
policy, and to declare a willingness to go to the 

166 



The Resolutions, i6j 

greatest length to which they could possibly be 
driven. In adopting this line of action the desired 
result was probably attained, — for it is not possible 
to believe that they then expected to have to resort 
to the extreme measures threatened ; but they left 
a dangerous inheritance to posterity. For, as the 
first great party utterance, it was only natural that 
these resolutions should become an authoritative 
formula of party faith ; and being generalizations 
open, in many points, to widely different construc- 
tions, so soon as profession began to turn into prac- 
tice they provoked dissensions, and like all radical 
professions of faith, dissensions produced parties 
ready to go any length and give any proof of their 
orthodoxy, however extreme. The extreme party 
under a document itself setting forth a maximum 
policy would needs be a thing to contemplate with 
anxiety. 

The resolutions were intended to be first of all a 
protest against what was regarded by their authors 
as encroachments upon the rights of the States. 
Proceeding from this point, they affected to deter- 
mine the relations of the States to the national 
Union, and then to declare what procedure was 
proper in the premises. But in doing this, it was 
found necessary to say something more than the 
same body would have said in laying down the 
relations of the State to individuals within its 
bounds, and prescribing the penalties for violat- 
ing those relations. It did not speak with judicial 
finality, nor with the calm force of authority, but, 
its end and aim being agitation, the Kentucky 



1 68 The Doctrines and 

legislature spoke rhetorically, declaring in height- 
ened metaphors the facts that would have stirred 
up few to listen if couched in simple language ; 
and in proposing the remedies for the past and 
the preventives for the future, it launched into 
bold invective and grave menace. The sister 
States still heard with cold hearts, and the same 
kind of utterance was indulged in the following 
year in the " solemn protest " of the resolutions of 
1799. They did not put their words into action, 
but waited. The tide was already upon the turn ; 
in 1801, Mr. Jefferson became President, Mr. Mad- 
ison Secretary of State, Mr. Breckinridge Senator 
in Congress, and, with a Democratic adminstra- 
tion and Congress, there was no need of further 
act or declaration. They sat down in peace and 
power and, pointing to the declarations of 1798, 
pronounced them the true repository of the prin- 
ciples of their party, and left it to a younger gen- 
eration to try what could be made of them in actual 
practice. It would doubtless have been far hap- 
pier for the country if they could have been tried 
and tested at once by practical experiments, as the 
principles of the Federalists were triumphantly 
proved in the first years of our national life. But 
they were to be handed down only as the rally- 
ing cry in the gathering for a great and notable 
triumph. 

The victory of Jeffersonian Democracy in 1800 
was complete and final, and the new century wit- 
nessed a change of regime of the most radical 
character. In very many respects there has been 



Effects of the Resolutions, 169 

no return to the old order of things, and probably 
can never be. The old Federalist party had many 
fine old-fashioned notions which were a good deal 
tinged with aristocratic memories of the colonial 
days, and which were forwarded by the natural 
nobility of Washington and the taste for show that 
amounted to a foible in Adams. Indeed, although 
the country generally was feeling after the " demo- 
cratic simplicity " which Jefferson introduced, it 
was a new thing, and they did not know exactly 
how it was to be attained, without sacrificing the 
dignity of the government. The new president 
broke the spell when he rode to the Congress- 
house and tied his horse to the fence and went 
in. Thenceforth it was the essence, not the sem- 
blance, of authority, that was all powerful. The 
new order of things exercised a great spell over 
the populace, and the Federal party melted away 
and left the field more and more to the new party, 
till in 1 816, when Mr. Monroe was chosen to the 
chief magistracy, there was practically no oppo- 
sition. 

It is the experience of many centuries that the 
royal minister naturally seeks to exalt the preroga- 
tive of the crown, and the leader of the administra- 
tion to strengthen the hands of government. None 
could expect a party in power to be instant, in sea- 
son and out of season, to curb its own authority. 
Hence it was that, when Mr. Jefferson and his fol- 
lowers found the control of affairs in their hands, they 
grew far less jealous of the " overgrown central gov- 
ernment " ; and while they in some measure pruned 



1 70 The Doctrines and 

away growths that they were in a sense pledged 
to remove, they, nevertheless, fostered and grafted 
in others which hardly harmonized with their policy 
of the old days of opposition. The task of constitu- 
tional construction was naturally a difficult one, and 
even under the teaching of the Resolutions of '98 
there was room for differences of opinion. No one 
could set up an exact standard. There were few who 
dared attempt to exclude certain plain and obvious 
powers, which were only given to the central govern- 
ment by implication from the Constitution. The 
great controversy lay as to where the limit of im- 
plication was to be set. The same man might well 
draw his bounds differently at different times, and 
a party could hardly be expected to observe entire 
consistency on such a point. Hence it was that 
the Republican or Democratic party shifted its 
ground on many occasions. 

The first testing of the principles of '98 by the 
Jeffersonians that had any importance, occurred in 
1803 in connection with the purchase of Louisiana. 
That measure was extremely popular, and there 
was no question that the majority of the people 
were eager to give their sanction to it. The future 
of the new West was beginning to dawn on the 
minds of many men, and the opening of the way to 
the Gulf and of the great country beyond the Mis- 
sissippi to be an important object. But the Presi- 
dent was seriously in doubt if, under the Constitu- 
tion, there was any power to acquire territory. The 
unhappy remnant of the noble old Federalist party, 
torn by internal dissensions, broken by reverses. 



Effects of the Resolutions, 171 

and fast becoming little and narrow — a faction 
rather than a party — opposed the ratification of the 
purchase. With his usual caution, Mr. Jefferson 
sought the opinion of his principal followers. 
Three letters upon this subject may be read in his 
published works written to Mr. Madison, Mr. Lin- 
coln, and Mr. Breckinridge, respectively, in the 
month of August, 1803. In his letters to Mr. 
Madison and Mr. Lincoln he proposes an amend- 
ment to the Constitution, authorizing the acquisition 
of Louisiana and the prospective addition of Florida 
also. He again wrote to Mr. Breckinridge on the 
13th of August a letter which has never been pub- 
lished, and it was probably in this letter that he 
enclosed a draught in its simplest form of what he 
thought necessary to be proposed to Congress at the 
next session. It is as follows : 

Resolvedj By the Senate and House of Representa- 
tives of the United States, both Houses concurring, 
that the following amendment to the Constitution 
of the United States be proposed to the legislatures 
of the several States, which, when ratified by three 
fourths of the said legislatures, shall be valid to 
all intents and purposes as a part of the said Con- 
stitution : Louisiana, as ceded by France to the 
United States, is made part of the United States. 

We have already seen that the great advocate of 
the Resolutions of '98 differed from his leader on 
this subject. He was ready to infer this much, 
however narrow he thought the bounds of constitu- 
tional inferences should be drawn. Perhaps the 
practical party-leader became uppermost in him at 



172 The DoctrUtes and 

this time, and he feared that if his party committed 
itself to the policy of procuring an amendment, it 
would lose Louisiana. It required a two-thirds 
vote to pass such a bill, and the Federalists had a 
very active remnant still in the field. The result 
showed that this would have been a real danger. 
For when the treaty came up for ratification in the 
Senate, only one Federalist, General Dayton, voted 
for it. Under whatever pressure or inducement 
he formed his opinion, Mr. Breckinridge was firm 
in the conviction that no special authority was 
necessary in the premises, and though pressed to 
introduce some measure into the Senate, steadily de- 
clined and opposed the policy with such success that 
the project was abandoned, and the President was at 
last content with an act authorizing him to occupy 
and temporarily govern the new territory. This is 
a strange and instructive commentary on the falli- 
bility of human judgment. These men certainly 
were in the fullest sympathy five years before, and 
affected to lay down the limits of motion under 
just such conditions ; and yet, in the first test, so 
imperfect was the rule of conduct that, both ad- 
hering to it, they were found in diametrically oppo- 
site positions. Is it any wonder that in the hour of 
fiercest conflict those who equally acknowledged 
the authority of the Kentucky Resolutions, should 
have differed no less radically ? 

But it was not long before an even more singular 
contrast was to be exhibited to the world, in this 
connection. The eagerness of the West and South 
forced Mr. Madison to give his sanction to the 



Effects of the Resohdions. 173 

war of 181 2. The measures preceding the war, 
the non-intercourse act, the embargo, and the war 
itself, weighed fearfully on commercial New Eng- 
land. There, too, the last broken remains of Fed- 
eralism languished in a hopeless, and therefore 
bitter, opposition. The burden laid upon them 
at last seemed greater than they could bear, and in 
1814 a convention of delegates from the New Eng- 
land States met at Hartford, Connecticut, agreeable 
to the call of the Massachusetts legislature. The 
committee which recommended the calling of this 
convention, spoke with much vigor in its report, 
and declared that, " when the national compact is 
violated, and the citizens of the State are oppressed 
by cruel and unauthorized law, this legislature is 
bound to interpose its power and wrest from the 
oppressor his victim." ^ Tv^enty-six delegates 
came together and debated the situation pro and 
con behind closed doors, very little to their own 
satisfaction and greatly to the alarm of the country, 
and especially of the President. The result was a re- 
port which discouraged precipitation or any imme- 
diate action, and, while it firmly asserted the right 
of a State to resist oppression, declared that, in the 
opinion of the convention, the time for such action 
had not come. One paragraph, which is character- 
istic of the whole report, is particularly worth quot- 
ing. It declares : 

" In case of deliberate, dangerous, and palpable 

^ For very full reports of the antecedent legislative action 
and the proceedings of the Hartford convention, see Miles' 
Register, i8 13-1 814. 



1 74 The Doctrines and 

infraction of the Constitution affecting the sover- 
eignty of the State and liberties of the people, it is 
not only the right but the duty of such a State to 
interpose its authority for their protection in the 
manner best calculated to secure the end." 

Mr. Madison, at that time President, was har- 
assed and almost in despair at the dark outlook 
on every side. In his eyes the Hartford conven- 
tion was the gathering of a body of arch-conspira- 
tors. Restless and uneasy, he watched it with 
armed men, and to his ears these words came like 
the wicked voice of treason. It may well be in- 
quired if he remembered that it was he who, sixteen 
years before, had penned the third resolution of the 
Virginia series, declaring : 

"That in case of a deliberate, palpable, and 
dangerous exercise of powers not granted by the 
compact, the States who are parties thereto have a 
right, and are in duty bound, to interpose for 
arresting the progress of the evil, and for maintain- 
ing within their respective limits the authorities, 
rights, and liberties appertaining to them." 

The one is scarcely more than an echo of the 
other, and the parallel is heightened by the fact 
that the sentiment of the seventh resolution, express- 
ing attachment to the Union, which Mr. Madison 
so constantly insisted in later life was always to be 
taken in connection with the third resolution, has 
its counterpart in the report of this convention. 

In one material respect the declarations of this 
convention differed from those of 1798. The 
measures of redress proposed were very different. 
In the former case an appeal had been made to the 



Effects of the Resolutions. 175 

sister States, and then to Congress. No sooner was 
it apparent that both of these appeals had failed, 
than it was clear that the sentiment of the people 
was with those making the appeal, and that they were 
on the eve of a political revolution. Now, however, 
the States and Congress were plainly against those 
who made their plaint, — hopelessly and irredeema- 
bly so. Their cries had long gone up in vain. Some 
new course was, therefore, requisite. The course 
adopted consisted in proposing certain amend- 
ments to the Constitution which, it was fancied, 
would secure the rights which were asserted. To 
this proposition they sought to give force by a 
half-spoken threat of extreme measures. 

The remarkable thing in the history of this move- 
ment is not so much the adoption under like press- 
ure of the principles of the Resolutions of 1798 and 
the use of almost identical language, both in form 
and substance, but the circumstance that not once 
in this report is the example or authority of those 
resolutions cited or in any way referred to. To 
have thrown themselves openly upon the doctrines 
of those famous papers would have won respectful 
attention and perhaps success for them ; for the ad- 
ministration would not have dared to repudiate 
them, even had it wished to. The principle would 
have been at once consented to, and the ap- 
plication alone questioned. But this they would 
not do. They preferred to stand on the principles 
themselves, or, at least, on the necessity of the case. 
Nor is the reason far to seek. It has already been 
said that these men were mainly representatives of 



176 The Doctrines and 

the old Federalist party. Though that party had 
outlived its mission, and from being the repository 
of many noble principles and the champion of 
many honorable measures, had sunk through too 
great greed of power into a body of wranglers and 
obstructionists, it still had some able members who 
retained a living hold on the principles that had 
once been its glory, and were bound to its poor 
skeleton by the splendors of its traditions. The 
one sentiment that still survived with unimpaired 
vigor and pervaded the bosom of every member of 
the faction, was a hatred of the Republican party, 
of all its leaders and all its measures. It found it- 
self now professing that party's old principles, but 
it was unwilling to acknowledge the fountain 
whence they sprang. Nothing would have dra\vn 
them to such a profession. The Republicans also 
were somewhat backward in seeing the resemblance. 
They, at least, saw nothing unconstitutional in the 
laws now complained of, nor could they discover 
any analogy between 1798 and 1814. Thus a par- 
tisan spirit blinded the eyes of both parties, and 
while the one shrank from drawing a precedent 
from the promulgations of the other, that other 
looked with unmasked condemnation on the reas- 
sertion in almost identical language of their great 
fundamental party platform. 

There was a happier issue out of their troubles 
near at hand than the New England Federalists 
dared even to hope for. The American Commission- 
ers obtained far better terms than the United States 
had any just cause to expect, and concluded a 



Effects of the Resolutions. 177 

treaty with Great Britain, the provisions of which 
in some important points were quite indefi- 
nite ; and these were made to assume a favorable 
aspect from the timely victory at New Orleans, 
which closed the war of 181 2, being gained, indeed, 
after the treaty was agreed to. The result was a 
very general satisfaction with the administration ; 
and the hands of government, which had for a time 
been weighed down by the travail of war, were now 
steadily strengthened and raised up. Monroe came 
into the presidency with what has been called the 
" era of good feeling," and for a time Jeffersonian 
Democracy was almost the only political creed pub- 
licly professed. The evil of too unlimited a pros- 
perity soon showed itself. Many measures were 
carried through the houses of Congress that would 
not have been considered by the same party at 
an earlier date at all constitutional. Even Mr. 
Madison had difficulties in applying the doctrines 
of 1798 to practical legislation. He vetoed the 
bills for internal improvements, but gave his consent 
to the bank ; while others, perhaps equally entitled 
to represent the spirit of his party, supported 
the measures directed towards internal develop- 
ment, but bitterly condemned the United States 
Bank. As the whole power and patronage became 
more and more fixed in the one party, the uncer- 
tainty of its policy steadily increased. Natural 
tendencies towards disruption began to show them- 
selves as time passed, and personal difficulties be- 
tween the leaders, especially on the election of John 
Quincy Adams to the Presidency, afforded occasion 
for the entrance of the wedge of separation. 



I yS The Doctrines and 

And, indeed, all men cannot be orthodox. The 
infirmity of human nature is too great for men to 
hold any faith, religious, political, or of what kind 
soever, in perfect purity and accord for any great 
length of time. The party of Jefferson, Madison, 
and Monroe, might be all or nearly all the people. 
But, even if that were so, it would be impossible to 
persuade them of it. They might hold, each man for 
himself, the old principles pure, but there was yet 
no consensus of opinion. Some of the sacred flames 
had died away upon the altars. But every man 
thought it was his neighbor's and not his own. 
There was the oracle, spoken plainly in all men's 
ears in that year of blessed memory, 1798, but 
none could say for another what high priest should 
interpret the mystic words. The division of opinion 
began while the whole country still shared the ven- 
eration for Mr. Jefferson. And it was some time 
before any party arose that was willing to cite the 
example of the Federalists. At first it was an 
internecine war, and each faction looked upon 
every other as schismatic. 

The first great strain put upon the doctrines of 
1798 in the Democratic party itself, was the first- 
fruit of the South Carolina form of the doctrine of 
Nullification, as developed in the tariff controversy 
of 1829 and the succeeding years. President 
Jackson, Mr. Calhoun, and Mr. Clay, well repre- 
sented at that time three phases of political thought ; 
and yet they all were prepared to stand upon the 
Kentucky Resolutions. When, in his great debate 
upon the Foote resolutions, in the Senate of the 



Effects of the Resolutions. 1 79 

United States, Mr. Hayne planted himself and 
South Carolinia Nullification on those resolutions, 
the Whigs and Administration Democrats were 
not backward in assailing this position. And so the 
conflict deepened. The tariff question was settled, 
apparently to the discomfiture of the Nullification- 
ists, yet not without concessions to them ; but after 
it, came the great slavery issue to try men's souls. 
In this struggle the principles of '98 were the shuttle- 
cock of parties. Men could not agree upon their 
final and undeniable meaning ; and, indeed, it must 
always be a problem open to doubt, and every solu- 
tion must be full of saving clauses. Some attempt at 
analysis is however essential to the completeness of 
this sketch, and if the distinction between theoreti- 
cal and practical politics is kept constantly in mind 
some light may be thrown upon the subject. 

The Kentucky Resolutions enunciate with ad- 
mirable distinctness the theory that the Union is 
not a National so much as a Federal Union ; that it 
is a pact, and the States alone are parties to that 
pact; "that to this compact each State acceded as 
a State, and is an integral party, its co-States form- 
ing as to itself the other party," and that by this 
compact they created a general government for 
special purposes only. The inferences from this 
fundamental position are then pressed very far ; 
great force is put forth to accentuate the amend- 
ment which provides that " the powers not dele- 
gated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the 
States respectively, or to the people," and, by in- 



i8o The Doctrines and 

ferential arguments, to restrict the exercise of any 
and all implied pQwers. It is distinctly declared 
that there is no common judge between the parties ; 
but "each party has an equal right to judge for 
itself as well of infractions as of the mode and 
measure of redress." 

The last sentence contains the pith of the prob- 
lem. What exactly does this mean ? How far is 
this to be pushed ? If it is to be taken as meaning 
that upon any grievance, real or fancied, against the 
general government, or against any individual State, 
a State has the indefeasible right to proceed to act 
in a sovereign capacity as it shall see fit, or that 
instantly upon the assumption of this right to judge 
it may remain, or cease to be, a member of the 
federation as it shall elect, then here is the fully- 
fledged doctrine of States' rights. Each State has 
the " right to judge " '' of infractions," and also " of 
the mode and measure of redress." This sentence 
taken alone would seem to give to the Union no 
firmer tie than that of any league of States for 
whatever purposes united, and to depend for per- 
manence solely on the forbearance of the individual 
States. 

The spirit of this single sentence is not carried 
through the whole instrument. The ninth resolu- 
tion indicates a tendency to depend, not on the will 
. . of any one State in such an issue as was then 
before the country, but upon the determination of 
the States. The plural may or may not be signifi- 
cant. Two or three, or a dozen, or a majority of 
the States, would not alter the case. Any number 



Effects of the Resolutions. 1 8 1 

less than the constitutional two thirds, and that 
number acting in any other wise than under the 
prescribed course of the Constitution, and by any 
other means than by an amendment, would still 
leave the State action in the same category. But 
the eighth section is an appeal for a repeal of the 
laws complained of. AVas this section an exercise 
of self-restraint, expedient but not compulsory ; or 
was it the means the Resolutions meant to prescribe 
as appropriate ? The two considerations of what 
was regarded as justifiable and what was regarded 
as expedient w^ould naturally be blended in such a 
document, and this renders any absolute decision 
on one or two points impossible. For example, the 
States denied the appeal to them, and the Congress 
the appeal to it. Did the statesman who drew this 
paper, and those who acted with him, consider that 
this closed the matter, and that the protest of the 
next year was the only course they could then pursue? 
Or did they hold that they could have refused to 
permit the obnoxious laws to be executed in their 
States ? or have regarded the act as a breach of 
their compact, and retired from the federation, 
and only refrained from doing so out of a spirit of 
forbearance, and for the sake of expediency, seeing 
the political revolution drawing near ? Mr. Breck- 
inridge's speech does not illumine the subject 
greatly, although it must be remarked that States, 
not a State, still stand for the acting power. An 
instructive, but not a convincing or deciding side 
light, is throv/n upon the subject by a comparison 
of the two draughts. The Jefferson draught con- 



1 82 The Doctrines and 

tained in its eighth resolve two clauses which were 
omitted by Mr. Breckinridge, both of which carried 
out the spirit of the first resolution, and specified 
the power as a right of the individual State in a way 
quite without parallel in the resolutions as adopted. 
The first of these is as follows : " That in cases of 
an abuse of the delegated powers the members of 
the general government being chosen by the people, 
a change by the people would be the constitutional 
remedy ; but where powers are assumed which have 
not been delegated, a nullification of the act is the 
right remedy ; that every State has a natural right 
in cases not within the compact {casus non foederis^ to 
nullify of their own authority all assumptions of 
power by others within their limits." And the sec- 
ond is this, " Will each take measures of its own for 
providing that neither these acts nor any others of 
the general government not plainly and intention- 
ally authorized by the Constitution, shall be exer- 
cised within their respective territories." 

It is impossible to escape the conclusion that the 
Jefferson draught, containing these statements in the 
eighth resolve in connection with the statements of 
the first resolve, lays down a doctrine that needs 
only to be acted on by bold and uncompromising 
men to be all that the advocates of nullification in 
South Carolina held that it v/as. Had the Jefferson 
draught been the one adopted in Kentucky, and 
had there arisen severe prosecutions under the Sedi- 
tion law, there is little reason to doubt that under 
the temper of the time, the whole programme of the 
opponents of the national government might have 



Effects of the Resolutions. 183 

been attempted at once. The effect then might 
easily have been final and fatal to the young State. 
The Jefferson draught, so far from sustaining the 
position once occupied with regard to it by many 
Jeffersonians, who were misled by the error in the 
copy of the Kentucky Resolutions published by 
Elliot in his " Debates," which omits the clause, 
"its co-States being as to itself the other party," out 
of the first resolution, and by a mistaken notion 
that the Breckinridge Resolutions were identical 
with the Jefferson draught, and that Jefferson never 
wrote the word nullification, in fact, goes further 
than the Resolutions, as adopted, and specifies more 
plainly the right of a single State to obstruct 
national legislation, than did the Resolutions them- 
selves; reaching this result more completely than did 
the Resolutions of 1798 and 1799 combined, for the 
famous nullification sentence of 1799 retains the 
plural form of 1798, and is in these words : "That 
the several ^ States who formed that instrument 
being sovereign and independent, have the unques- 
tionable right to judge of its infraction ; and that a 
nullification by those sovereignties of all unauthor- 
ized acts done under color of that instrument is the 
rightful remedy." 

In fine Mr. Madison has expressed the most 
guarded sentiments. Mr. Breckinridge, abandoning 
the general terms used by Mr. Madison, still holds 
a somewhat imperfectly defined middle ground, and 
Mr. Jefferson represents the most advanced type of 

* This word may, however, be construed to give a disjunctive 
effect to the whole. 



1 84 The Doctrines and 

States* rights found in any of the accepted formulas 
of 1 798 and 1799. The difference does not consist in 
the use of the word nullification, or the substitution 
for it of some equivalent term, for the circumlocu- 
tions do not alter the meaning, and the " interpose 
for arresting," and other similar terms employed by 
Mr. Madison, have the same force as the " nullify " 
of his coadjutors. The difference, if difference 
there is, lies in the difference in the parties acting, in 
the State or the States. Mr. Madison seems to have 
fairly intended, as he claimed in later life, no action 
by any number less than a majority of the States. 

The action, too, is throughout State action, the 
cause in jeopardy State sovereignty. This is not- 
able in connection with the fact that in quoting the 
reservation, '' to the States or to the people," of the 
undelegated powers, no quarrel lies between the 
nation and the people, but only between the nation 
and the States. The right of petition, the right of 
the ballot-box, the right of revolution, was conceded 
by all. It was not the people who felt attacked, it 
was the citizens of the States. | No effort was, 
therefore, directed to decide what undelegated 
powers v/ere reserved to the people and v/hat to the 
State, and this question is only once remotely 
touched on, and that by Mr. Madison in a letter, 
v/hen he expressed a doubt if the people of the 
State in convention were not the proper party to 
" interpose " instead of the legislature : in other 
words, whether the ordinary governmental machin- 
ery sufficiently represented the people, or if it was 
not necessary that the protest should proceed from 



Effects of the Resolutions. 185 

the same sovereign assembly which made the com- 
pact. None of the draughtsmen regarded the people 
as capable of acting directly in the premises. They 
were to act as citizens of the States, and, except by 
States, no action was possible, the citizen of Ken- 
tucky holding the same relation to the nation that 
a Spaniard once held to the alliance of the Holy 
League. 

How early these views began to take on the later 
forms a single example will suffice to show. Tucker 
in his edition of Blackstone's Commentaries, pub- 
lished in 1803, in commenting on the United States 
government, says : " The Federal government, 
then, appears to be the organ through which the 
united republics communicate with foreign nations 
and with each other. Their submission to its opera- 
tion is voluntary ; its councils, its engagements, its 
authority are theirs modified and united. Its sov- 
ereignty is an emanation from theirs ; not a flame 
in which they have been consumed ; not a vortex 
in which they have been swallowed up ; each is still 
a perfect State, — still sovereign, still independent, 
and still capable, should the occasion require, to 
resume the exercise of its functions in the most un- 
limited extent." ' 

Thus early was the implied doctrine very dis- 
tinctly declared, and from this time forth a grov/th 
of States'-rights principles clustered about the Reso- 
lutions of 1798. They were not only the founda- 
tion-stone of the Democracy, but just as the party 
of nullification and secession was a direct outgrowth 
^Vol. I. App., p. 175. 



1 86 The Doctrines and 

of that party, so were its doctrines developed out 
of the principles of this formula and based upon it ; 
but whether logically or illogically deduced there- 
from, is a question which has torn the minds and 
hearts of men in vain in the sphere of practical 
politics. Whatever conclusion may be arrived at 
upon that point, it is an historical fact beyond con- 
troversion that the Nullifiers never doubted, nor 
hesitated to affirm that the Kentucky Resolutions 
contained the germ of all that they professed. 

In the controversies that have grown out of the 
difference of opinion upon this and the kindred 
questions of interpretation, the student must pro- 
ceed with caution. There are no calm, judicial, 
declarations, but every judgment is more or less 
biased by party spirit. It is no place, therefore, for 
dogmatizing. The only safe course is plainly to set 
forth the claims of all who speak with evident can- 
dor, and to endeavor to sift out of the great mass 
of profitless material some little that will serve to 
instruct, even if it fails to ultimately determine all 
doubts. 

Mr. Madison was the only one of the draughts- 
men of the Resolutions who survived long enough to 
leave his testimony upon the question of what was 
the view actually intended to be expressed. He 
speaks with conclusiveness so far as his own action 
is concerned, and although his words cannot carry 
with them the same weight as regards his co-work- 
ers, they must be admitted to possess great value in 
determining what were their ideas. Mr. Madison 
took an intense interest in the nullification contro- 



Effects of the Resolutions, 187 

versy of 1830 and the following years, and wrote a 
mass of comment upon the subject. Much of this 
is found in his letters written in these years, espe- 
cially in the very valuable series of letters to N. P. 
Trist, Joseph Cabell, and Edward Everett ; impor- 
tant matter is also contained in a communication 
published in the North American Review and in an 
article on nullification. In these papers he has ex- 
pressed his own views very fully and decidedly, and 
they are of the greatest value for their interpreta- 
tion of the papers drawn by him in 1798 and 1800. 

His position is, that he never contemplated any\ 
attempt by a single State to prevent the law of the 
United States from being put into operation as was 
being attempted at that time in South Carolina. 
That in the first place any resistance was condi- 
tioned upon an open and palpable violation of the 
Constitution, that even in such a case the constitu- 
tional measures open to the citizens were to be 
exhausted for their relief and then, if the case 
was one of the extremest nature, the States were 
justified in physical resistance, and that this resist- 
ance ought to come from the States, not from a 
State. However, he admits that the same right 
may be extended to a single State, to a single 
county in a State, to a single citizen even, in the 
last resort ; but at the same time he says that the 
proper remedies against " usurpations in which the 
Supreme Court concur " (it will be noted that this 
is an extreme case), are " constitutional remedies, 
such as have been found effectual, particularly in 
the case of the Alien and Sedition laws, and such as 



1 88 The Doctrines and 

in all cases will be effectual, while the responsi- 
bility of the general government to its constituents 
continues ; remonstrances and instructions ; re- 
curring elections and impeachments ; amendment 
of Constitution, as provided by itself." 
" Finally, should all the constitutional remedies fail 
and the usurpations of the general government be- 
come so intolerable as absolutely to forbid a longer 
passive obedience and non-resistance, a resort to 
the original rights of the parties becomes justifia- 
ble, and redress may be sought by shaking off the 
yoke, as of right might be done by part of an indi- 
vidual State in a like case, or even by a single 
citizen, could he effect it, if deprived of rights ab- 
solutely essential to his safety and happiness." 
This of course puts the question on the very differ- 
ent ground of the inviolable right of revolution, 
and is based on considerations totally unlike the 
foundations of the Resolutions of 1798, His exact 
position in regard to his own deliverances is clearly 
laid down in a letter to N. P. Trist, of date Febru- 
ary 15, 1830. " It was certainly not the object of 
the member (Mr. Madison) who prepared the docu- 
ments in question to assert, nor does the fair im- 
port of them, as he believes, assert a right in the 
parties to the Constitution of the United States 
individually to annul within themselves acts of the 
Federal government, or to withdraw from the 
Union." And, in a letter to the same gentleman of 
date December, 1831, he further says that the ut- 
terances of Virginia " do not maintain the right of 
a single State, as a party to the Constitution, to ar- 



Effects of the Resolutions, 189 

rest the execution of a law of the United States, it 
seems to have been overlooked, that in every in- 
stance in those proceedings where the ultimate right 
of the States to interpose is alluded to, the plural 
term States has been used, the term State, as a sin- 
gle part, being invariably avoided." ^ And in the 
same letter he denies that the nullification party- 
has any authority in the Virginia Resolutions for 
their proceedings, and expresses a question as to 
the fairness of the attempt to foist upon Virginia 
an intention which she and her people never enter- 
tained. These are only a few of the many in- 
stances of a sentiment that Mr. Madison frequently 
made public. He openly avowed that he was hos- 
tile to the nullification doctrine and defended him- 
self, his own writings, and his great leader from the 
assertions that they were the fathers of that doc- 
trine. 

It must always be remembered, however, that 
Mr. Madison was stronger in his proclivities tow- 
ards a firm national union than any of those con- 
cerned in the declarations of 1798. He had origi- 
nated the plan of the convention at Annapolis, 
which led to the Philadelphia convention of 1787. 
In that convention, which drew the Constitution, he 
had been a friend of a strong Constitution, he had, 
also, aided in the expositions of the Federalist, pre- 
served the papers of the great convention for pos- 
terity, urgently advocated adoption in Virginia, and 
only under Mr. Jefferson's lead slowly drifted from 
his moorings and became a leading Republican. 
^ The italics are Mr. Madison's. 



1 90 The Doctrines and 

The sense of nationality deepened again as years 
passed and made the country really one, and he 
loved it with the tender love of a father. It must 
also be borne in mind that Mr. Madison had not 
gone to the same length in 1798 as either Mr. Jeffer- 
son or Mr. Breckinridge, nor so far in 1800 as Mr. 
Breckinridge in 1799. Nevertheless he was in the 
very inmost councils of the party, and knew, as few 
men could know, just what were the opinions of 
his comrades. His assertions, therefore, deserved 
great weight, and received it. The Virginia and 
the Kentucky legislatures joined in denying the 
doctrine of nullification, and in reproba.ting the at- 
tempt of the South Carolinians to fasten it upon the 
emissions of those bodies in 1798 and 1799. 

Hence it was under the leadership of no less a 
person than Madison that the faction of the Demo- 
cratic party v/hich denied that their great corner- 
stone contained the heresy imputed to it, entered 
the lists, and with such avowals from Mr. Madison 
as they received, it cannot be claimed that they 
acted inconsistently. The suspicion is easily sug- 
gested, that in the one case the Virginia Jeifer- 
sonians were actuated by a personal interest that 
in the other was wanting, and that they acted, 
therefore, in both cases alike, not out of principle, 
but from the standpoint of selfish advantage. This 
may be true and yet throw a false light on their 
action. Partisanship, when not the child of 
prejudice, traces its pedigree at no far remove to 
self-interest. It is not at all uncommon in practical 
politics to find men professing earnest devotion to 



Effects of the Resolutions, 191 

the precedents of a former generation, a devotion 
usually inherited, while their own situation is con- 
stantly driving them to limit and curtail those pre- 
cedents, sometimes to so great an extent as to rob 
them of all living force. 

From these considerations it is evident that the 
Virginia and Kentucky Jeffersonian Democrats who 
were so active in condemning nullification in 1829 
and 1830 might have clung to the Resolutions of 
1798 under the lead of Mr. Madison with perfect 
consistency ; nor is it inconceivable that while in a 
perfectly candid spirit they regarded the crisis of 
1798 and 1 86 1 as demanding the most extreme 
measures, and, under this view, regarded the ma- 
chinery put in motion as justifiable, they, never- 
theless, did not consider the necessities and ur- 
gency of the situation in the period of the tariff 
contest as so extreme, or as warranting the action 
taken by South Carolina. 

There was probably from the beginning an ele- 
ment in the South which was quite ready whenever 
occasion arose to support the most advanced doc- 
trine of disunion. Doubtless this tendency was 
common to men throughout the Union whose nat- 
ural inclinations led them to be impatient of re- 
straint and suspicious of a strong government. 
That this tendency was more pronounced in the 
South, was probably due only to local and transitory 
causes. The opposition to the tariff in South Caro- 
lina aroused the more excitable portions of the citi- 
zens to resistance of a kind that can hardly be re- 
garded now as appropriate or commensurate to the 



192 The Doctrines and 

grievance. Not at all abashed by the cold recep- 
tion which their views met with from those from 
whom they expected sympathy, they persisted in 
directing local authorities to prevent the revenue 
officers from performing their duty, and for a time 
actually seemed on the point of nullifying a law of 
the general government, a course which nothing 
but the personality of Andrew Jackson prevented 
their carrying out. Nor were the leaders of this 
movement slow in putting themselves on what they 
believed to be a firm foundation. Promptly and 
without hesitancy they declared that they stood 
upon the principles of 1798, and that the resolu- 
tions of that year contained ample warrant for their 
conduct. That this was by no means unfamiliar to 
many Democrats, as a not impossible stretch of the 
doctrine, appears from the readiness with which it 
was acquiesced in by a large number outside of 
South Carolina, and the eagerness of others to dis- 
prove it by arguments often painfully subtle, and 
by their very refinement showing that it was not in 
their view to be treated as merely a quixotic claim. 
There was, and is, room for doubt whether a 
complete subscription to all the declarations of the 
Resolutions of 1798 would not in the last analysis 
force many to the position occupied by the Nullifi- 
ers in the tariff conflict, if the mind confined itself 
solely to the theoretical study of the instruments 
themselves. And it is hard to see how the element 
of bad faith can be introduced into their position 
so far as their interpretation of the doctrines of the 
resolutions is concerned. 



Effects of the Resolutions, 193 

Practically the nullification measures collapsed at 
the time, but convinced against their will, the South 
Carolinians retained their theories, and cultivated 
and disseminated them. A much more serious con- 
flict was even then looming up in the future. The 
institution of slavery soon gathered to itself all the 
teachings of the Nullifiers upon the tariff measures, 
and the slow revolving years crystallized the half- 
formed and partially accepted teachings of 1830 
into a system. The whole South, jealous of its 
"peculiar institution," gradually became more or 
less permeated with the most extreme construction 
of the Resolutions of '98, and South Carolina once 
more took the initiative in 186 1. In both instances 
it was claimed that the teaching was plain upon the 
complete and inalienable sovereignty of the indi- 
vidual States, upon the right of a single State, or of 
any number, more or less than a majority, indiffer- 
ently, to nullify a law of the central government, 
and if upon sufficient pressure, to secede. It may 
sound like an extreme statement, but as a part of 
the creed in these cases was that, in case of infrac- 
tions the individual State was to be " the judge of 
the infraction as well as of the mode and measure 
of redress," the final truth is that the teaching ex- 
tended to declaring that the individual State was at 
liberty whenever and upon whatever pretext it saw 
fit to prevent the execution of national laws within 
its limits or to take itself out of the pact. 

For all of this it is claimed that the authority was 
to be found in the Resolutions of 1798. Nor can it 
be denied that this claim was made with all can- 



194 ^^ Doctrines and 

dor and with the highest confidence. It was in 
the teeth of the assertion of Madison and those who 
shared his views, but as it claimed to stand less on 
the official relation of its interpreters than on the 
logic of the case, it claims a right to be considered, 
and it did not fail in making itself heard and felt. 

The two branches of the Democratic party were 
equally persistent, and split more and more widely 
as the irrepressible conflict drew nearer and yet 
more near. Between the two schools there was a 
gradation through almost every possible shade of 
opinion. The arbitrament of the sword, perhaps 
justly regarded as the court of last resort in all 
questions of practical politics, has apparently de- 
termined the extension of the more advanced 
theory of States' right. But it would be a mistake 
to think that those convinced against their will are 
not in a large degree of the same opinion still on 
the theoretical point. There is no lack of support at 
the present time rendered to the orthodoxy of both 
interpretations of the Resolutions, and the difference 
is not likely ever to be practically reconciled. 

So brief a sketch as that attempted in this chap- 
ter cannot fail to be hopelessly inadequate to the 
task it undertakes. The tangled threads of the 
subject can only be traced by minute and detailed 
study of a complex and stormy period, and the 
most painstaking investigator often finds himself 
at fault, or is baffled by the fierce party spirit 
which has thrown many a difficulty in the way of a 
final and triumphant solution of all the questions 
that are involved. Nevertheless, there are a few 



Effects of the Resolutions, 195 

principal threads which may be followed with some 
certainty, and the clue which they afford is rea- 
sonably reliable. It has only been attempted here 
to follow up such lines, and the results, while not 
complete and exhaustive, at the same time, it is be- 
lieved, are not misleading. 

In conclusion it is sufficient to call attention to 
the fact that the Kentucky Resolutions have been 
one of the most potent factors in American history. 
Their influence has been deep and far-reaching, 
bearing ample testimony to the eminent statecraft 
of which they are the repository. They embody 
no fleeting party platform, but are the basal princi- 
ples of one great political school, which will prob- 
ably continue so long as we remain a nation. Their 
importance therefore is not to be lightly estimated. 
For occupying the great place they do in our 
history, every question connected with them be- 
comes of high interest to the statesman and the 
political and social philosopher, as well as the his- 
torian. And one definite hope may well be ex- 
pressed, that hereafter, as the conflict of parties 
grows less intense over the principles of '98, a 
juster spirit may pervade the comment and criti- 
cism upon them, that those who deserve to be 
honored for their acts in connection with the action 
of that memorable year may receive their meed of 
praise with a more equal hand, and that the really 
important place in the Constitutional History of 
the United States which the Kentucky Resolutions 
occupy, may receive the honest recognition of all, 
without prejudice from partisan influences. 



INDEX. 



Adams, John, conduct in French complications, 11-13 ; his 
taste for show, 169 

Adams, John Quincy, 177 

Adet, Pierre Auguste, French envoy, 12 

Alien and sedition laws, provisions of, 14 ; working of, 17 ; 
Jefferson on, 18 ; reception in Kentucky, 20 et seq. ; alone 
assailed in Virginia Resolutions of 1798, 107 ; made po- 
litical issue in 1800, 108 ; no prosecutions under, in Ken- 
tucky, no ; their effect in Kentucky and Virginia, no 

Alien clause in the Constitution, abused in the Kentucky 
Resolutions, 106 

Amendment to Constitution proposed by Jefferson to embody 
principles of resolutions of 1798, 131 ; to receive Louisi- 
ana, 171 

Anti-Federalism, difference of meaning before and after the 
adoption of the Constitution, 4 ; merges into Republican- 
ism, ir ; disuse of term, 109 

Breckinridge, Alexander, founder of family in America, 

50, 51 

Breckinridge, Alexander, Jr., officer in the Revolution, 58 ; 
member constitutional convention in Kentucky, 59 

Breckinridge, James, connection with Virginia Resolutions, 
1798, 100 ; political weight, 104-129, 130, 149 

Breckinridge, Jas. D., 99, note 

Breckinridge, John, leads Kentucky opposition to the alien 
and sedition laws, 36-48 ; ancestry, 49 ; birth, 51 ; youth, 
52 ; elected to the House of Delegates, 53 ; called to the 
bar, 54 ; appointed attorney for the district of Kentucky, 
56 ; elected to Congress, 56 ; removes to Kentucky, 57 ; 
president of the Democratic Society of Lexington, 58 ; 
receives Republican vote for U. S. Senator, 58 ; success 
at the Kentucky bar, 60 ; Attorney-General of Kentucky, 
61 ; legal opinion in contested gubernatorial election, 62 ; 
in the legislature, 63 ; revises the criminal code, 63 ; op- 
poses the alien and sedition laws, 63 ; offers Kentucky 

197 



198 



Index, 



Resolutions of 1798, 63, 75 ; in the second constitutional 
. convention of Kentucky, 64 ; Speaker of the House of 
Representatives, 64 ; offers resolutions of 1799, 64 ; 
elected to the United States Senate, 64, 168 ; leads the 
administration party in the Senate, 65 ; position as to the 
annexation of Louisiana, 66 ; pressed for Vice-Presidency, 
68 ; Attorney-General, 70 ; his character, 71 \ speech in 
debate on Kentucky Resolutions in the legislature, 91 ^/ 
seq.; his attitude in 1799, 123 ; effects of reputed author- 
ship on his reputation, 134 ; his claims to the credit of 
authorship, 135 et seq.; letter to, 171 ; position as indi- 
cated by Resolutions of 1798, 183 

Breckinridge, John, 73 

Breckinridge, John Cabell, 73 

Breckinridge, Joseph Cabell, 55, 73 ; letter to Jefferson, 136 

Breckinridge, Colonel Robert, 51 

Breckinridge, General Robert, votes for the United States 
Constitution in the Virginia Convention, 32, 51, 57 ; 
sketch of, 58 

Breckinridge, Robert Jefferson, 73 

Breckinridge, W. C. P., -vii., 140 

Breckinridge, W. L., 73 

Brovi^n, John, 31-33, 61 

Cabell family, 54 

Cabell, Joseph, letters to, 187 

Cabell, Mary Hopkins, 54 

Cabell's Dale, 57 

Caldwell, R., 75 

Calhoun, John C, 178 

Carter, Robert, 44 

Clark County, Kentucky, resolutions condemning alien and 

sedition laws, 40, 45 
Clark, General George Rogers, 35 
Clay, Henry, 178 

Connecticut disapproves Resolutions of 1798, 113 
Constitutional construction, growth of, 170 
Crockett, Col. J., 34 
Crowninshield, Jacob, 69 

Dana, Francis, 13 

Dayton, General Jonathan, only Federalist who voted for 

treaty ceding Louisiana, 172 
Debates, Elliot's, error in text of Resolutions of 1798, 183 
Delaware, response to Resolutions of 1798, iii 
Democrat, original application as a party name, ii 
Democratic club of Danville, Ky., 35 



Index, 1 99 

Democratic-Republican party, origin of name, ii ; triumph in 
1800, 168 ; different views within, as to doctrines of Reso- 
lutions of '98, I go et seq. 

" Democratic simplicity," 169 

Democratic societies, formed, 35 ; at Lexington, Ky,., 36, 58 

Edwards, John, Senator from Kentucky, 37, 58 

Elliot's Debates, error in text of Resolutions of 1798, 183 

Everett, Edward, letters to, 187 

Federalist party, decay of, 109 ; majorities in V. and VL 
Congresses, iii ; actions in Congress, 117 ; fall of, in 
Virginia, 130 ; brings about Hartford Convention, 173 

Fishback, Jacob, 43, 47 

Foote resolutions. The, 178 

French troubles, 13, 14, 15 

Gallatin, Albert, 67, 70, 116 
Gardoqui, Don Diego, 31, 32 
Garrard, James, 61, 74, 85, 96 
Genet, Edmond C, misconduct of, 11, 35, 98 
Gerry, Elb ridge, 13 

Giles, Wm. B., advocates Virginia Resolutions of 1798, 103 ; 
introduces bill praying repeal of acts of Congress, 129 

Hartford Convention, attitude, 173 ; parallel with Virginia 
Resolutions of 1798, 174 ; unwillingness to quote Resolu- 
tions of 1798, 175 

Hawes, Judge Richard, 142-4 

Hayne, Robert Y., 179 

Henry, Patrick, 4, 55, 129, 130 

Individualism in politics, 8 
Innis, Harry, 31 

Jackson, Andrew, 178 

Jay, John, treaty with Spain, 3 

Jefferson County, Va. (Ky.), casts entire vote for Constitution 
in Virginia Convention, 32 

Jefiferson Draught, so-called, 151 ^z" seq.; its character, 181, 
182 

Jefiferson, Thomas, attitude towards the Constitution, 4 ; desire 
for individualism, 8 ; leads movement towards Republi- 
can party, 10 ; Vice-President, ir, 12 ; probable conceiver 
of Virginia Resolutions of 1798, 103 ; account of proceed- 
ings in Congress, 116; popular gifts, 117; account of 
Republican gains, 118 ; seeks a consultation in 1799, 119 
et seq.; opinion of Kentucky Resolutions of I799. 128 ; 



200 Index, 



desire to incorporate the "principles of '98" in the 
Constitution, 131 ; suspected connection with Kentucky 
Resolutions of 1798, 133 ; relations to Resolutions, 143 et 
seq.; letter to J. Cabell Breckinridge, 135 ; no copy of 
Kentucky Resolutions found in his papers, 151 ; Presi- 
dent, 168 ; seeks opinion as to constitutionality of ad- 
mitting Louisiana, 171 ; advanced position in his draught 
in 1798, 183-4 ; also 55, 56, 65, 70, 127, 130, 178 
Johnston, Alexander, vii. 

Kentucky, settlement, 21 ; characteristics of early settlers of, 
21 et seq.; struggle for autonomy, 24 et seq.; Congress 
denies application for admission to Federation, 33 ; ad- 
mitted to the Union, 34 ; hostility to alien and sedition 
laws, 20, 38 ; loyalty after 1801, 127 

Kentucky legislature, passes Resolutions of 1798, 75 ; of 
1799, 123 

Kentucky Resolutions. See Resolutions. 

Lee, Gen. Henry, 103, 129 

Lincoln, Levi, 67, 69, 171 

Livingston, Edward, 116 

Logan, Col. Benj., 25, 61, 62 

Louisiana, purchase of, 65 et seq.; question of annexation, 171 

Madison, James, early political attitude, 4, 5 ; anti-Federalist 
leader in Congress, 10, 12, 67, 70 ; author of Virginia 
Resolutions of 1798, 103 ; reasons for using general terms 
in the resolutions, 105 ; enters House of Delegates, 119 ; 

draws report of 1800, 128 ; misled by " Nicholas" 

letter, 141 ; Secretary of State, 168 ; letters to, 171 ; 
position in latter years of life, 172, 177 ; feeling towards 
Hartford convention, 174 ; guarded expressions in 1798, 
183 ; interpretation of Resolutions of 1798, 186 ; letters 
and comments on Resolutions, 187 

Maine, 31 

Marshall, Humphrey, 33, 58, 59, 64, 97, 98 

Marshall, John, 13, 33 (note), 55, 56, 129 

Marshall, Col. Thomas, 33 

Maryland, action on Resolutions of 1798, 115 

Mason, S. T., 18 

Massachusetts, response to Resolutions of 1798, 112 

Mercer, James, 103 

Mississippi trade, 28 et seq. 

Monroe, James, 12, 55, 104, 130, 169, 177 

Murray, William, leads opposition to Kentucky Resolutions 
of 1798, 86-88, 91-97 



Index, 20 1 



Muter, George, 32 

Naturalization act, The, 14 

New Hampshire, reply to Resolutions of 1798, 113 

New Jersey, action as to Resolutions of 1798, 114, 115 

New York, action as to Resolutions of 1798, 113 

" Nicholas, Esq.," letter, the so-called, 136, note ; 138 

Nicholas family. The, 43, 44 ; claims of, as to Kentucky Reso- 
lutions, (i) as to George Nicholas, 142 et seq.j (2) as to 
W. C. Nicholas, 145 

Nicholas, George, 47, 55, 57, 99, 141 ; activity in opposing 
alien and sedition acts, 43-45 ; not the mover of the 
Kentucky Resolutions, 45 ; pamphlets, 118 ; death, 119 ; 
character, 122 

Nicholas, John, 43, 55, 71, 116, 130, 146 

Nicholas, Nelson, 143, 144 

Nicholas, P. N., 43, 131 

Nicholas, S., 5, 142, 143 

Nicholas, Wilson C., 43, 119, 120, 133, 141 ; leader in Vir- 
ginia debates, 1798, 103, 146; part in movement of 1798, 
147 ^/ seq. 

North Carolina, attitude in 1798, 114 ; proposed field for action 
by Republicans in 1798, 146, 148 

Nullification, word first used in the "Jefferson draught" of 
1798, 183 ; as developed in South Carolina in the tariff 
controversy, 178 ; fathered on Resolutions of 1798, 179, 
186 ; logical development of principles of the " Jefferson 
draught," 182 

Pennsylvania, attitude in 1798 and 1799, 114, 115 
Peter Porcupine, 46 

"PhiloAgis,"45 

Pinckney, C. C, 12, 13 

Political tendencies in the United States, 2-8 

Pope, John, moves amendment to Kentucky Resolutions of 

1798, 96 
Preston, John, 51 

Randolph, Edmund, 36, 44 

Randolph, John, 70 

Randolph, Miss Sarah Nicholas, contribution to history of 
Resolutions of 1798, 140, note ; 141, note ; 145, note ; 150 

Report of 1800, Madison's, 128 

Republican party, early use of term, 17 ; outgrowth of anti- 
federalism, 109 ; activity from 1798 to 1801, iii ; pa- 
tient policy, 119; high-handed measures, 129; feeling 
towards the Hartford Convention, 176 ; no unity in in- 
terpreting Resolutions of 1798, 178 



202 Index, 



Resolutions of 1798, the Kentucky, offered in committee, 75 ; 
text, 75 ; debate on, 87 ; amendments to, 96 ; vote on, 
96 ; true text, 99, note ; compared with Virginia Resolu- 
tions, 105 ; not known to Madison in 1798, 105 ; doc- 
trines, 105 ; made Republican platform, 108 ; replies to, 
111-115 ; adverse reception by other States, 115 ; effect 
in Congress, 115 ; authorship of, 131 et seq,; Jefferson 
suspected of connection with, 133 ; John Breckinridge's 
relations to, 134 ; Breckinridge's claim to authorship 
first questioned, 135 ; John Taylor's statements concern- 
ing, 135 ; Richmond Enquirer' s statement, 135 ; Cabell 
Breckinridge's letter to Jefferson concerning, 136 ; Jef- 
ferson's reply, 138 ; compared with the " Jefferson 
draught," 152 ; relations to the nullification movement, 
163, 182 ; a political manifesto, 166 ; doctrines and effects 
of. Chap. VII.; principles tested, 170 ; theory of govern- 
ment, 179 ; analysis of, 180 ; foundation of Democratic 
party, 185 ; characterized, 195 

Resolutions of 1798, the Virginia, offered by John Taylor, 
100 ; text of, 100 ; drawn by Madison, 103, 133 ; debate 
on, 103 ; vote on, 104 ; amended, 104 ; compared with 
Kentucky Resolutions, 105 ; reason for use of general 
terms in, 105 ; doctrine of, 106 ; responses to, 111-115 ; 
parallel between, and the utterances of Hartford Conven- 
tion, 174 

Resolutions of 1799, the Kentucky, suggested by Jefferson, 
120 ; idea rejected, 122 ; revived and carried out, 123 ; 
passed, 123 ; text, 123 ; Breckinridge's letter to Jeffer- 
son respecting, 123, note ; contains the word " nullifica- 
tion," 126 ; same tenor as Resolutions of 1798, 127 

Resolutions condemning the alien and sedition acts in Vir- 
ginia, 171 ; in Kentucky, 39, 45, 46 

Rhode Island, response to Resolutions of 1798, II2 

Schouler, Hon James, vii 
Sebastian, Benj., 31 

Sedition act, see Alien and sedition laws. 
Shelby, Governor Isaac, 36, note ; 61 
Slavery, clause in Constitution concerning, 107, 108 
Smith, Robert, 69 

State action, alone contemplated in Resolutions of 1798, 184 ; 
Mr. Madison's views of, 184 

Taylor, George Keith, leads the opposition to the Virginia 
Resolutions of 1798, 103, 104, 129 

Taylor, John, 18, 100 ; offers Virginia Resolutions, icx), 133 ; 
leads debate, 103 ; claims authorship of Kentucky Reso- 
lutions for Jefferson, 135 



Index. 203 

Todd, Thomas, 6r, 85 
Trist, N. P., 187, 188 

Tucker, St. George, view of nature of union as based on 
Resolutions of 1798, 185 

Vermont, set off against Kentucky for admission to the fed- 
eration, 31 ; response to Resolutions of 1798, 114 
Virginia, leads in movement towards Republican party, 10 
Virginia Resolutions of 1798. See Resolutions. 

Wallace, Caleb, 99, note ; 147 
Washington, George, lO, 56, 129, 133, 169 
Welling, Prest. James C., 143, note; vii 
Wilkinson, James, 28-34 

X. Y. Z., despatches, the, 14 



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